Deputy Chief Justice Dikgang Moseneke. Image by Martin Rhodes
Chairing a discussion titled Transitional Justice at a Crossroads: Lessons from South Africa, Comparative Perspectives, and Ideas for the Future, Deputy Chief Justice Dikgang Moseneke explained why it is necessary to integrate international law into domestic legislative processes.
Panelists included: Judge Sang-Hyun Song (President, International Criminal Court), Delphine Serumaga (Executive Director, Centre for the Study of Violence and Reconciliation), Advocate Dumisa Ntsebeza SC (Advocate of the High Court of South Africa), Advocate Allan Ngari (Transnational Threats and International Crimes Division, Institute for Security Studies).
The panel discussion was held at Wits Great Hall on September 8th. The Wits Justice Project co-hosted the discussion, together with Wits University, the Embassy of the Kingdom of the Netherlands in Pretoria, and the Centre for Applied Legal Studies.
Below are remarks from Deputy Chief Justice Dikgang Moseneke…
Has international law afforded us in Africa peace and justice? The seductive answer is “no”. And yet the picture is chequered.
Our continent has produced not only the bad and ugly but also the good. A good starting point would be the criticism that the normative scheme of international law is “un-African”.
It is an unwarranted imposition of neoliberal and Eurocentric notions on a world order that is moved, not by law, but by unequal power relations between developed and under-developed nations. It is so that the realpolitik places power and the vital security and the commercial interests of nations ahead of the nicety ethics and international law norms of peace and justice.
But realpolitik cannot and should not oust the usefulness of an international order under the rule of law. Public international law developed because the world order could not countenance military aggression or wars.
Nor could it sit back as citizens of authoritarian state suffer internal war, insurgency or crimes against humanity. The atrocities of World War II led to a global recognition of the need to protect human life and welfare by holding states accountable to a universally accepted code.
International law encompasses humaneness, compassion, human dignity and conformity to the basic norms of collective unity. Its underlying norms are in harmony with the African principle of ubuntu.
International pressure has undoubtedly played a role in ending, or limiting, suffering and injustice in African states. Had it not been for the imposition of economic sanctions and an arms embargo by the UN Security Council on apartheid South Africa, President FW de Klerk’s decision to abandon apartheid in 1990 might have been fatally delayed.
The redirection and withdrawal of aid by foreign donors has arguably been the main driving force behind the speedy nullification of the draconian Anti-Homosexuality Act by the Ugandan Supreme Court.
Last year, the international community succeeded in exerting pressure on Rwanda to end its military support of the M23 rebel group in eastern Congo. The loss of Rwanda’s support and the bolstered military capacity of UN peacekeeping troops in the area left the group with no choice but to end its protracted military insurgency in December of last year.
International law has played a role in maintaining peace and justice on the continent. Africans have been the primary beneficiaries of the emerging Responsibility to Protect (R2P) norm.
Following its invocation in Kenya in 2007/08 and Côte d’Ivoire in 2011, the international community successfully intervened in both the Central African Republic and South Sudan last year to prevent the mass slaughter of civilians on religious and ethnic grounds.
Our own country, South Africa has intervened under the African Union security system in domestic insurgencies in the Central African Republic, Burundi and elsewhere on the continent to restore peace and stability.
Africa needs adequate space to accelerate social and economic development – to banish poverty, ignorance and ill-health as its people find their true potential. Peace, stability and justice are prerequisites for the second-coming. Our states and so too our judiciaries should look to the norms of international law to enrich our domestic settings.
Domestic courts on the continent will do well to look at international law obligations for guidance when giving meaning to their constitutions and municipal law.
In Glenister v President of the Republic of South Africa, our Court drew from the country’s international obligations in order to give flesh to the constitutional dictate to set up a dedicated and independent corruption fighting unit.
Many countries in Africa are emerging from dire conflicts. They are adopting new constitutions infused with international law principles and endorse international criminal justice. More and more African countries are trying to come to terms with a past characterised by external aggression, insurgency and sometimes pervasive ethnic conflict and violence.
We should revert to the indispensable notion of conflict resolution through mediation and reconciliation under law and justice. After all, human solidarity is deeply embedded in African traditions.
Of course, sometimes international law falters as it fails to bring peace and justice. The strictures of international law, combined with relentless international pressure, were eventually successful in persuading South Africa to withdraw from its illegal occupation of Namibia. But international law, while equally clear, has been less effective in relation to the Israeli occupation of East Jerusalem, the West Bank and Gaza (which Israel continues to occupy from outside, through its control of most of Gaza’s border crossings, its airspace and its offshore waters).
There can’t be peace and stability without justice, and there cannot be justice without the rule of law.
Read the edited versions of the address as they appeared in the witsLEADER publication and City Press.