Pretoria replicates al-Bashir debacle
Publish date: 21 August 2017
Issue Number: 4288
Diary: Legalbrief Today
Category: Corruption
For the second time in as many years, the SA Government has stunned – and outraged – the global community with its handling of a diplomatic bombshell. When Sudanese President Omar al-Bashir visited Sandton for an AU summit in defiance of an International Crimnal Court arrest warrant, it caused massive cracks in the global court and deeply divided the continent. Fast forward two years and Sandton was once again the venue for an extraordinary diplomatic storm – this time courtesy of Zimbabwe’s fiery First Lady Grace Mugabe, notes Legalbrief. Following days of diplomatic fallout over Mugabe's alleged vicious assault of a young South African woman, Gabriella Engels, International Relations Minister Maite Nkoana-Mashabane yesterday said her diplomatic immunity was warranted. ‘The Minister has made the determination that the conferring of diplomatic immunity is warranted in this particular instance. The department wishes to convey the message that the Minister has agonised over this matter and the decision was not an easy one to make,’ the Department of International Relations and Co-operation (Dirco) said. Legalbrief reports that the Dirco statement notes Nkoana-Mashabane said she considered several factors such as the need to uphold the rule of law, ensure fair administration of justice, and uphold the rights of the complainant before making her final decision. Other factors were the imperative to maintain good inter-governmental relations within the SADC region, and in particular, between SA and Zimbabwe. This also has to do with the incident coinciding with SA’s hosting of the 37th SADC Summit of Heads of State and Government (which ended yesterday) and legal matters. The First Lady and President Robert Mugabe were met by senior government officials after they landed in Harare early yesterday morning. A report on the EWN site notes that Mugabe, who attended the opening ceremony of the SADC summit on Saturday, was replaced by the country's Foreign Affairs permanent secretary Ambassador Joey Bimha.
Upholding the rule of law was not a defence that could be made in Mugabe’s case, Ottilia Maunganidze, an expert on the African Court of Justice and Human Rights at the Institute for Security Studies, said. Recognising the rule of law would have meant that Mugabe was charged. A Business Day report quotes Maunganidze as saying: ‘(This case) … sends the wrong message that ordinary citizens face the full might of the law, while high-profile individuals can simply invoke diplomatic immunity and get away with ‘’murder’’,’ she said.
In a further twist to the assault case, the Sunday Times reports that a waitress suffered a miscarriage after she was pushed by Robert Mugabe jnr as he fled his mother's violent attack at a Sandton hotel a week ago. The waitress at Capital 20 West was delivering food when Robert jnr ran past her and pushed her out of the way. The woman fell to the ground and was rushed to hospital, where she later lost her baby. A hotel employee confirmed the incident. ‘She was not hit by Grace. It was Robert jnr who pushed her out of the way as he ran away from his mother. Grace did hit staff members ... She was hitting everyone – her sons, their friends, the girls and staff members, the source said. Garnet Basson, COO at The Capital Hotel Group, said ‘we are handling this thing internally. Please respect that. We will decide on how to deal with this matter going forward’.
Not surprisingly, the official opposition parties - in both countries – have reacted with outrage. The DA said it will be demanding an immediate parliamentary inquiry into government’s complicity in allowing Grace Mugabe ‘to flee the country in the dead of night to avoid criminal prosecution’. ‘It is simply inexplicable how this has happened again. It illustrates how unrepentant the ANC government is and, following its complicity in allowing Sudanese president Omar al-Bashir to escape an international arrest warrant, shows that the ANC government will continue to do exactly what it wants to protect their dodgy friends,’ said DA MP John Steenhuisen. He said the government has no more legitimacy in the arena of international diplomacy and displays a total disregard for the rule of law. In Zimbabwe, the MDC described Mugabe as a ‘disgrace’ and said she should have faced justice in SA. MDC spokesperson Obert Gutu told News24 that it was regrettable that South African authorities decided not to prosecute the Zimbabwean First Lady after committing such a ‘heinous crime’. ‘Grace Mugabe is a violent, crude, uncouth and disgraceful character. It is very unfortunate that SA decided to grant her diplomatic immunity,’ said Gutu. Political analyst Rashweat Mukundu said the assault case damaged the image of the First Lady and Zimbabwe in general. ‘However, SA was between a rock and a hard place as the First Lady, by virtue of her status becomes a diplomat and as such entitled to diplomatic immunity. I am sure that SA is agonised over this but long term diplomatic relations are far more important than the assault case for the two countries and its most unfortunate for the victim, but to me sacrificing diplomatic relations between Zimbabwe and SA was never an option and the victim becomes a victim at the altar of diplomacy,’ said Mukundu.
Nkoana-Mashabane gazetted a notice granting Mugabe immunity after she had already left the country with her husband President Robert Mugabe on Saturday, notes a Daily Maverick report. The report says the Minister’s delay in granting immunity was apparently a deliberate ploy to forestall any legal challenges to the move before the Mugabes had left the country. The NPA could not lay charges against her while Nkoana-Mashabane was considering whether or not to grant her immunity. And the activist group AfriForum, which took up Engels’ case, could not launch a private prosecution until the NPA had decided not to prosecute. Professor Andre Thomashausen, former professor of international law at Unisa, said: ‘The granting of baseless, ad hoc diplomatic immunity to retrospectively shield a person from criminal and civil liability for serious assault charges is a blatant abuse of national and international law. It is clearly opportunistic, meaning no actual good reason for such immunity exists other than to cover up a criminal conduct. It taints the government as lacking in respect for international law, compassion for victims of abuse and honesty. It makes a mockery of every due process and will further diminish the international standing of SA.’ A report in The Citizen says social media users are questioning the dates on the letter. They have asked how a letter that was drafted on 20 August was signed on 19 August.
It is not the end of the matter and the fight for justice will continue, civil rights watchdog AfriForum warned yesterday, says a TimesLIVE report. Willie Spies‚ AfriForum’s legal representative, said that AfriForum had already given notice on Friday that the organisation would assist Engels in bringing a review application in order to set aside the decision to grant diplomatic immunity to Grace Mugabe. The Star quotes AfriForum chief executive Kallie Kriel as saying: ‘If the review application is successful, and there are good grounds to believe that such an application will succeed, the doors will be open for the NPA to prosecute Mrs Mugabe.’ If the NPA refused to prosecute her, their private prosecution unit would begin with the private prosecution proceedings, he added. And Parliament’s chairperson of the Portfolio Committee on International Relations, Siphosezwe Masango, said they would discuss the matter in the ANC’s study group tomorrow. He said they hadn’t had time to discuss it since the furore began, and tomorrow’s meeting should come up with a decision.
