SA's deadly silence on 'mercenaries'.

By its very nature silence is difficult to detect, generates no paperwork and is almost impossible to be blamed for.

After World War 2, the United Nations charter - and South Africa's General Jan Smuts is credited widely for writing it - was designed to end the gas chambers and aggression against other countries.

It signalled a move away from staying silent for the sake of respecting sovereignty, but instead speaking up for the sake of human rights.

Back in 1991 when South Africa did not have a Bill of Rights and Joe van Zyl and his Swissbourgh group still had their diamond mining rights and mines, the silence from the then government did not matter that much. But then the Lesotho government expropriated Van Zyl's mineral rights and neither the old nor the new South African government did anything to help.

It was stated in the Van Zyl court case that "the mineral rights were unlawfully expropriated to make way for the Lesotho Highlands Water Project".

In terms of the Lesotho Highlands Water Project Treaty South Africa agreed to pay the expropriation costs.

More than a decade of legal battles - with paperwork that, in the words of one judge, "strained belief of what can be contained in a arch-lever file" - Van Zyl took the post 1994-South African government to court. He wanted a court order stating that the government was under a constitutional duty to give him effective diplomatic protection against the unfair expropriation of the diamond mining rights and the destruction of his mining plants.

While Pretoria High Court judge Essop Patel was still writing that judgment two things happened. In March this year the Constitutional Court gave a judgment that said where the government has a policy and does not apply it, they are acting in an unconstitutional way. Round about the same time 70 South African men were arrested at Harare International Airport.

It was believed they were on their way to Equatorial Guinea to assist a number of other South Africans to overthrow the government of President Obiang Nguema.

The men asked South Africa for help - the government did almost nothing.

Even after reports surfaced that the 70 men might be extradited to Equatorial Guinea where they will face the death penalty, South Africa did very little.

This time government's silence had the potential to be more than financially devastating - the lives of its citizens were on the line. What this did was to speed things up a little, and last week the case of the men accused of mercenary activity was heard in the Constitutional Court.

Once again the request was that the court should find that South Africa has a constitutional duty to afford effective diplomatic protection to its citizens.

In March 2002 - at the height of land invasions in Zimbabwe - the Minister of Foreign Affairs Nkosazana Dlamini-Zuma, was asked in parliament what South Africa's policy was towards protecting citizens and their property abroad.

Dlamini-Zuma stated the government's official policy: "If the South African government becomes aware that the property rights of its citizens in a foreign country are compromised, it would be addressed through diplomatic channels.

"The South African government would continue to ensure the safety and security of all its citizens, their property, as well as South African-owned companies operating in foreign countries."

However, in July that year Deputy Minister of Foreign Affairs Aziz Pahad said, in papers before court in the Van Zyl case, that his department was refusing diplomatic protection on the basis of policy considerations. He did not state that there was any policy in place to do this.

Was this lying by default?

This has now become significant, as government has refused to place Dlamini-Zuma's answers before Judge Patel, but these answers were placed before Chief Justice Arthur Chaskalson by the legal team for 69 of the 70 men held in Zimbabwe.

In light of the Constitutional Court judgment that government would be violating the constitution if it does not apply its own policy, this might spell trouble for the Department of Foreign Affairs.

In the Constitutional Court, counsel for the government Ismail Semenya SC, however, said that South Africa's foreign policy restricted them from providing consular services to those who land in trouble outside the country's border - a very watered-down version of the diplomatic protection of human rights promised by Dlamini-Zuma in earlier answers.

Is this attitude an indication that the South African government is still far away from the new approach adopted by an increasing number of states, that it is inappropriate to respect the sovereignty of countries where there is no meaningful protection of human rights in place?

Now the standard for this is - if it is not flippant to describe it as such - the ten commandments of international law, called the international minimum standard.

This law lays down the non-negotiable human rights that must be respected - they include the right to a fair trial, a bar on torture, a bar on the death penalty in the absence of a fair trial, and the right not to lose property to the state without being compensated.

When it comes to the protection of human rights both Zimbabwe and Equatorial Guinea fall short of the standard.

Advocate Francois Joubert SC, part of the 70 detainees' legal team, summarised it in his argument before the Constitutional Court: "All is not well," he said.

Amnesty International, the International Bar Association and one of South Africa's leading prosecutors, advocate Jan Henning SC, were scathing in their reports on human rights abuses in Equatorial Guinea. Henning went so far as to advise the National Prosecuting Authority that they should under no circumstances get involved in the prosecution of the men.

Yet, in the face of reams of accusations Semenya, counsel for the government, persisted that "it was not enough".

Henning, Semenya said, is no expert and the rest is not evidence. He stressed that human rights were paramount in the formulation of the Department of Foreign Affairs' foreign policy - but this, he said, did not mean that government was compelled to help those faced with torture, unfair trial and the possible death penalty.

Semenya relied on a judgment by the British Court of Appeal in the case of Feroz Ali Abbasi. Abbasi is a British national who was captured by United States soldiers in Afghanistan. In January 2002 he was taken to Guantanamo Bay, Cuba, where he was held for eight months without access to a court or a lawyer. His mother wanted the British Foreign Office to make representations on his behalf to prevent his detention without trial.

The British Court of Appeal however refused to do so, holding that the British government was not obliged, under the European Convention on Human Rights and the British Human Rights Act, to do so.

The South African government seemed to find considerable comfort in this ruling.

Wim Trengove SC, for the Society for the Abolition of the Death Penalty, argued that they should not. He pointed out that under the South African constitution government has no existence, no power and no function beyond what is given to it in the constitution, while the Human Rights Act is no more than a set of constraints imposed on the UK government. "The UK government can sometimes act free of the constraints imposed by the Human Rights Act, the South African government cannot act outside its (constitution)," Trengove said.

And the same government, he emphasised, had a constitutional duty to provide effective diplomatic protection to citizens in foreign countries where they face the death penalty. A statement which government has responded to in uncomfortable and unexplained silence.

[Source: By Estelle Ellis, The Star, South Africa, 27Jul04]

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