ARTICLES

 

Putting the relationship between states and the icc into perspective: the viability of national courts in driving complementarity in Africa

 

 

Justin Ngambu Wanki^I; Grace Bilounda Mundela^II; Michelo Hansungule^III

^IDEUG, Licence, Maitrise en droit LLM LLD Post-Doctoral Research Fellow, University of Pretoria
^IILicence, Maitrise en droit LLM Researcher in Humanitarian and International Criminal Law, University of Pretoria
^IIILLB LLM PhD Professor of Human Rights, University of Pretoria

 

 

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SUMMARY

This article discusses implementation challenges of the principle of complementarity; challenges in prosecuting sitting African Heads of state and nefarious warlords. The article highlights the disparity existing in physical security and remuneration between judges of national African courts and those of the ICC in similar jobs. While national judges are exposed to intimidation and influence from the most powerful in their jurisdictions, the ICC judges are provided with adequate protection and independence. Using the DRC and Kenya as case studies, this article asserts that where national courts intervene in prosecuting international crimes, heads of state would not be prosecuted. In most African states, the courts are spawned from the authoritarian regimes. This challenge renders the reliance on complementarity justice questionable.

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1 INTRODUCTION

Pursuant to Article 17 of the Rome Statute on the admissibility criteria, the International Criminal Court (ICC) only assumes its jurisdiction in circumstances where a state has failed genuinely to investigate and prosecute a given situation where crimes under its jurisdiction have been clearly committed.¹ These crimes include crimes against humanity, genocides and war crimes.²

Under the Rome Statute establishing the ICC, unlike most ad hoc security courts such as the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) that have primacy over national courts, the ICC peremptively defers to the competence of domestic courts.³ As a result, the jurisdiction of the ICC is only triggered when the national courts are unable or unwilling to prosecute alleged offences.⁴ This has become known as the principle of complementarity under international criminal law.

The principle of complementarity has grown to be accepted as being well suited to dealing with international crimes. This is so because the involvement of a public-law dimension appeared to be at odds with an absence of an underlying system of shared social ethics, given that the international regime knows no global sovereign and that morals differ from country to country.⁵ Consequently, giving national courts primacy to take action in a situation where an international crime has been committed is the way to go.

The Preamble to the Rome Statute is clear that the ICC's jurisdiction will be complementary to that of local jurisdictions as enshrined in Article 17 of the Statute.⁶ National implementation obligations taken up by states that show interest in becoming members of the Rome Statute are quite extensive. According to the Rome Statute, effective prosecution will only result if steps are taken from the national level, including international co-operation.⁷

Pursuant to Article 12 of the Rome Statute, a state accepts jurisdiction by becoming a state party, or if the state is a non-party to the Rome Statute, it can declare its acceptance of jurisdiction. Given that the ICC lacks most of the institutions required for the progressive handling of a criminal matter such as a police force and others, it has to rely on the assistance and cooperation of national mechanisms and state agencies.⁸

Implementation of the principle of complementarity calls for the concomitant engagement of the principle of jurisdiction. Jurisdiction ascertains the degree to which criminal acts committed are under the power of a state.⁹ The general principle under international law is that for a person to be accused of committing crimes before a domestic court, one of the four principles, which include territoriality, active nationality, passive nationality and universal jurisdiction, must be recognised.¹⁰

The aim of this article is to analyse the most overwhelming challenges faced by a majority of African national courts in implementing the principle of complementarity. In the process of the analysis, this article engages with a number of factors that have the potential to inhibit the realisation of this objective. These are the independence of national courts in Africa, the independence of judges in Africa, physical protection provided by government to judges in Africa, and the degree to which the pay package of judges in Africa is commensurate with the mammoth task with which they are entrusted. These factors are compared with the same factors in relation to ICC judges.

The next section of the article reflects on the prosecution of heads of state who are still in office in Africa, and of nefarious warlords. Thereafter, the article elaborates on the security and remuneration of judges of national African courts vis-a-vis that of ICC judges in discharging similar duties. The discussion here refers to a lack of self-protection and the dangers to which African judges are often exposed, given that nefarious warlords or powerful heads of state who have been indicted may threaten the lives of judges, which serves as a disincentive for judges to entertain such matters. The article also establishes that the intervention by municipal courts is reminiscent of double standards, given that only rebels are likely to be prosecuted. Most African countries' constitutions provide immunity for their sitting heads of state. A majority of African countries are authoritarian and the courts are spawn of the regimes.¹¹ Yet, independence of the judiciary is a recognised tenet of the rule of law.¹²

 

2 THE PRINCIPLE OF COMPLEMENTARITY AND THE PROSECUTION OF HEADS OF STATE

The principle of complementarity attributes the primary jurisdiction over international crimes to national jurisdiction. Nevertheless, when national jurisdiction fails to carry out that mandate, then the ICC takes over that role. Although the criminal-law systems of national courts provide justice for victims and due process for accused persons under international law, these states have often been unable or unwilling to fulfil that mandate.¹³

Moreover, universal jurisdiction in absentia has been used by the Princeton Principles on Universal Jurisdiction¹⁴ in its Principle 1 on the fundamentals of universal jurisdiction. This principle was also applied by the International Court of Justice in the Democratic Republic of Congo v Belgium (Arrest warrant case) of 2000.¹⁵

Ratification of the ICC Statute constitutes significant evidence of acknowledgment by states parties of their duty to reject impunity, to prosecute and to punish those who commit international crimes. The situation of two African states parties that have implemented the ICC Rome Statute at the national level (the Democratic Republic of Congo (DRC) and Kenya) is discussed hereunder.

2 1 The Democratic Republic of Congo (the DRC)

The Congolese justice system demonstrates the weaknesses and fundamental gaps and flaws that allow impunity to continue for past and current crimes committed in the DRC under international law.¹⁶

Despite efforts to bring about reforms to the justice sector and promote the fight against impunity by the ratification of the Rome Statute since March 2002, the outlook for justice at the national level remains bleak in the DRC. Few people have access to existing justice mechanisms, and confidence in the justice system is low. Victims and witnesses are reluctant to come forward, as there is no national system in place to protect them.¹⁷

Years have lapsed since the DRC ratified the Rome Statute in March 2002 but the DRC government has yet to meet its legal obligation to incorporate the statute into national law because the Senate must approve the Bill to that effect.¹⁸ Such legislation is essential to ensuring complementarity between the Congolese national jurisdiction and the ICC, and also to strengthen the country's legal system so that it can end the ongoing cycle of impunity of all perpetrators for the most egregious international crimes they have committed in the country.¹⁹

Article 9 of the 2001 draft legislation, which prepared the DRC for the implementation of the ICC Rome Statute before ratification and the integration of its norms into the Congolese law, provides that it "applies to all in like manner, with no distinction made based on official capacity".²⁰However, the 2001 draft legislation was replaced in October 2002 with the Draft Law implementing the ICC Statute (Draft 2 of October 2002).²¹

After ratification of the ICC Rome Statute, the Congolese parliament improved the Military Criminal Code (MCC) and granted the jurisdiction exclusive power over international crimes.²² The military courts have proceeded to adjudicate over international criminal crimes committed in the DRC. For instance, the military court of garrison of Haut Katanga on 5 March 2009 convicted the Mayi Mayi commander Gédéon Kuyungu Matunga and 20 other combatants for serious crimes; it also invoked and applied the provisions of the Rome Statute in the case of TMG de Mbandaka, Affaire Songo Mboyo, 12 April 2006, RP 084/05²³and many others.²⁴ In this case, the salary of soldiers had been stolen by a captain who was their commander and this resulted in mutiny in Songo Mboyo.²⁵ This was followed by reprisals by former rebels who awaited integration in the army according to a "global agreement."²⁶ The violence led to the rape and death of several women. The rape survivors laid charges against the TMG of Mbandaka and the military prosecutor charged the soldiers with the crime against humanity of rape.

Nevertheless, in the military justice system, officers defended soldiers under their command from justice and the political and military hierarchy protected senior military figures. This is of particular concern in a country where the army is one of the main perpetrators of crimes under international law.²⁷

The DRC has signed and ratified many international instruments addressing international crimes - such as the Geneva Convention of 1946, the ICC Rome Statute, the African Charter on Human and Peoples' Rights (ACHPR) and the International Covenant on Civil and Political Rights (icCPR), among others. Article 215 of the Constitution of the DRC stipulates that "lawfully concluded treaties and agreements have, when published, an authority superior to that of the law, subject to each treaty and agreement to its application by the other party". ²⁸ Therefore, all perpetrators of international crimes including state officials must be prosecuted and punished for their crimes. Moreover, Article 10 of the 2002 Draft Bill provides that the law must be applied equally without discrimination or distinction based on the official position.²⁹ In other words, any state official, including the head of state, would in no case be exempt from criminal prosecution and responsibility. This law has been implemented by the Penal Code, but it fails to address the issue of distinction based on official position. Nevertheless, the DRC has ratified the Rome Statute and this treaty enforces that provision.

The provision also provides that "immunities or those special procedural rules that may attach to the official capacity of a person, pursuant to the law or under international law shall not bar the jurisdiction from exercising their competent jurisdiction over that person".³⁰ It is accordingly submitted that impunity cannot be tolerated, regardless of who orchestrates grave breaches. However, the authors believe that given the perception that Africans attach to the role of a president, it is recommended that this responsibility should be discharged with wisdom and prudence.

2 2 Kenya

The post-election crisis of late 2007 and early 2008 is considered to be the consequence of Kenya's historical politics. ³¹ Kenyan politics has been characterised by five negative factors: ethnicity, dictatorship, criminal gangs, political alliances and impunity.³²

Subsequent to the announcement of the contested presidential election results on 30 December 2007, which gave a second term to Mwai Kibaki, Kenya was plunged into its worst political and humanitarian crisis from December 2007 to February 2008; violence caused the death of a thousand of people and the displacement of 300,000, both aspects having a serious ethnic character.³³

Pursuing accountability for serious crimes committed in Kenya after the presidential election, the outcome of the Kenya National Dialogue and Reconciliation Accord of 28 February 2008 was to set up a Commission of Inquiry on Post-Election Violence (CIPEV), also referred as the Waki Commission after chairman Judge Philip Waki. The Waki Commission's mandate was to investigate the facts and surrounding circumstances related to the serious crimes committed after the presidential election, as well as the conduct of state security agencies in handling their responsibilities, and to make appropriate recommendations on these matters.³⁴

In October 2008, the major recommendation of the Waki Commission was the creation of a Special Tribunal for Kenya. Both Kenyan and international judges had to seek accountability of individuals who bore the responsibility of international crimes. In December 2008, Kenya enacted the International Crimes Act 2008 to implement the Rome Statute in its legislation.³⁵

Failing in their responsibility to prosecute perpetrators of the serious crimes, on 31 March 2010, Kenya handed over the case to the ICC, which authorised the prosecutor to act proprio motu to start an investigation into Kenyan post-election violence.³⁶

The result of this investigation was that, in January 2012, charges were confirmed against Uhuru Kenyatta and William Ruto (elected in 2013 as president and deputy president of Kenya respectively); these included several counts of crimes against humanity such as killing (murder), forcible transfer of population, persecution, sexual offences and other inhumane acts.³⁷

Despite their high-ranking office, the question of immunity ratione personae did not constitute a barrier to their prosecution according to the International Military Tribunal of Nuremberg and the ICC under Article 27 of the Rome Statute, the International Criminal Law Commission and some scholars.³⁸ In fact, Kenyatta and Ruto did not face criminal proceedings in their positions but rather in their personal capacity.³⁹

In response to the result of the investigation, the Kenyan government decided to bring the case back to the country, based on Article 17 of the Rome Statute, in order to let the national courts, the East African Court and the African Court of Justice and the African Court of Human and Peoples' Rights prosecute the perpetrators.⁴⁰ Later in 2012, the Director of Public Prosecution (DPP) established a multi-ag₄e₁ncy with the mandate to prosecute the cases of post-election violence.⁴¹

All five counts of crimes against humanity are also punishable under Chapter XIX (killing), Chapter XV (sexual offences) and Chapters XXII and XXIV (protecting life and health) of the Kenyan Penal Code, which is more punitive than the ICC Rome Statute.⁴²

Unluckily for the victims of post-election violence, on 5 December 2014, the prosecutor (Fatou Bensouda) withdrew the charges of crimes against humanity against President Kenyatta, citing absence of sufficient evidence to proceed, while the case of Ruto and other perpetrator are still pending before the ICC's Pre-Trial Chamber.⁴³ Moreover, the prosecutor accused the Kenyan government of refusing to handle important evidence in the case, and of intimidation of witnesses.⁴⁴

Although Kenya has a criminal justice system that includes the International Criminal Act 2008 and constitutional protection for the most fundamental human rights, the post-election crimes remain a major problem owing to the lack of investigation or the lack of interest in prosecuting the crimes by the Office of the Director of Public Prosecutions.⁴⁵ Consequently, the International Crimes Division of the Kenyan High Court, proposed by a committee of the Judicial Service Commission (JSC) on 30 October 2012 and intended to prosecute post-election violence cases as well as other international and transnational crimes, may end up with no cases to prosecute.⁴⁶

2 3 Obstacles to the principle of complementarity

Given these facts, it is important to highlight that the ICC functions differently from national criminal courts in a number of important respects. Despite the existence of all necessary provisions in the two African countries under survey, they have failed the litmus test to establish proper and genuine implementation of such provisions. The primary responsibility to investigate and to prosecute crimes lies with the national authorities.⁴⁷ The fundamental principle governing the functioning of the ICC is the principle of complementarity, in terms of which prosecutions are deferred to the national state.⁴⁸ The ICC also has limited jurisdiction based on the territorial principle and the active national principle, apart from the principle of complementarity between the ICC and national courts.⁴⁹ From the analysis of the DRC and Kenya, it is clear that notwithstanding the domestication of the ICC statute, this has not resulted in the prosecution of international crimes.

Although the ICC only functions effectively if a state ratifies the Rome Statute, the provisions of the ICC already constitute a braking impact on the state's justice system.⁵⁰ Nonetheless, the jurisdiction of the ICC is activated only when there is unwillingness by a state to prosecute crimes under Article 5 of the ICC Rome Statute (crimes against humanity, war crimes and genocide), or inability in the case of a collapse of the judicial system or a lack of effective means at national level.⁵¹ Thus, the ICC can admit a case where there is a lack of implementation in the national legal system. Applicable international standards, including the Statute under Article 21 of the Rome Statute, are a consequence of "incapability" of national jurisdiction to provide justice in the given case.⁵²

The ICC can act where its jurisdiction has been accepted by the state in which the crimes were committed. The ICC can also act in the process of implementation lato sensu (in general) where a state is not party to the Rome Statute, as a means of avoiding the commission of such crimes in the state's territory by its state officials or by its nationals in third states.⁵³Moreover, the ICC may also intervene in terms of its powers under Article 13(b) of the Rome Statute if:

"a situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the [United Nations] Security Council acting under Chapter VII of the UN Charter even for crimes committed by nationals of or on the territory of non-state parties."⁵⁴

For instance, the situation in Darfur, Sudan since 1 July 2002 was referred to the prosecutor of the ICC by the Security Council on its Resolution 1593 (2005).⁵⁵

Despite the useful framework put in place for the purpose of implementing complementarity, an important question still remains: which judge in a national jurisdiction has the temerity to prosecute a sitting head of state? What makes the situation more complex is that in most of these jurisdictions, judges depend on the executive for their promotion and financial remuneration, and most often, the executive also has powers to discipline the judges. These factors pose a challenge to the realisation of complementarity in Africa.

 

3 THE FAILURE OF THE STATE TO PROTECT JUDGES

This section seeks to demonstrate the failure of states to secure or protect the lives of judges in Africa when compared to ICC judges who discharge similar duties.

The point of departure is that the principle of complementarity leaves the primary duty to prosecute heads of state (where necessary, as explained above) in the hands of local judges. In the event of failure or inability to carry out this function, the ICC steps in.

It is commonly observed that although the local judge has a daunting task to accomplish compared to that of the ICC judge, he or she lacks adequate security in terms of remuneration and life or human security.

The local judge lives in the same jurisdiction as the warlord or head of state who he or she must indict. Nefarious warlords may threaten judges' lives or those of their families because local judges are not given adequate protection by government. Again, an indicted head of state who is being prosecuted tends to command enough financial resources and influence to mobilise an illegal militia or loyal patronage networks if such head of state should wish to make life unbearable for the judge - an inert incentive for the judge to drop a case or recuse himself or herself permanently.

To avoid encroachment on human rights, judges have a duty, according to theorists, to reach a judgment that ensures the sense of a just application of facts and substantive law.⁵⁶ However, in Africa, this is far from being true because most judicial organs are not inde₅₇pendent but rather serve as a mouthpiece of authoritarian governments.⁵⁷ As a result, national courts' justice may only be reminiscent of the victor's justice and court - that is, justice as dictated by the strongest or more influential of the two parties

3 1 Financial security

Judicial independence is promoted by granting life tenure to judges, which ideally empowers them to decide cases and to make rulings according to the rule of law and judicial discretion, even if powerful interests oppose those decisions. Nevertheless, the financial security of judges in Africa seems to be a worrying issue as low payment only serves as a disincentive for judges to uphold the required standards.

3 1 1 Democratic Republic of Congo

Politicians in the DRC have constantly manipulated judges to the extent that judges are now accused of having become corrupt in order to supplement low salaries; that they are facing major independence challenges makes it more obvious that the judiciary may be vulnerable to corruption.⁵⁸ Some 1 700 judges of the DRC suspended a strike on 6 January 2004. The purpose of the strike was to demand better pay and working conditions, as well as greater independence of action. That the judiciary is not independent was among the reasons that their request for a salary increment could not be met.⁵⁹ This view suggests that an independent judiciary would enable judges to run their affairs without executive interference and as a result that the issue of their salary allocation should be fixed independently - probably to be voted on by Parliament, and not allocated by the executive. Whenever the salary of judges is allocated by the executive, a judge must defer to the authority of the executive for the latter to undertake any reform favourable to him or her.

Sambay Mutenda Lukusa, the president of the Gombe Court of Appeals and president of the judges' union, noted that "the financial question was part of our larger concern of ensuring an independent judiciary". At that time, the salaries of judges were between $15 (US) and $40 per month and they were asking for an increase in their salaries up to at least $950 per month and for payment of salary arrears.⁶⁰ However, there is still a problem of financial autonomy and security that pushes judges to engage in corrupt practices. The judiciary receives less than one per cent of the budget of the country; they cannot live comfortably without being tempted by corruption to supplement the basic subsistence of their families - that is, health care, shelter, transport and education for their children and food for their families.⁶¹

Indeed, the Constitution provides that the judicial power has a budget to be included in the DRC's general budget.⁶² The salary of judicial officials such as the First President of the Supreme Court, the Attorney General of the Supreme Court, the President of the Constitutional Council, the President of the Court of Auditors and the Commissioner of Law before the Constitutional Court has increased to 5 million francs ($3 192.61).⁶³

However, the realities faced by judges, magistrates and the entire judicial support staff in the DRC are stark. Justice Dhekana has stated: "we don't even have a budget to run our office. To get money, we have to hassle the people in our cases." Every year, the judges write a report to the national government, explaining their needs. "Nothing ever happens".⁶⁴ Moreover, the judge also pointed out that they are not working in a professional and conducive space. For instance, there is no electricity in Bunia's judges' office, except for a small solar panel; no chairs existed until UN peacekee₆₅pers donated some furniture, and the clerk uses a typewriter for all his work.⁶⁵

Unfortunately, the salary that Justice Dhekana receives as a judge at Bunia's court is $600, which cannot support his family.⁶⁶ Consequently, the judges extort money from the parties in the cases before them.⁶⁷

3 1 2 Kenya

The government of Kenya provides funds to all staff members of the judicial power in terms of the Constitution of Kenya, which states in its Article 160(3) that "the remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund".⁶⁸

However, there are cases of corruption of the judiciary that tarnish its reliability. This was demonstrated in the case of a judge of the Supreme Court of Kenya, Philip Tunoi, who was accused by journalist Wilson Kiplagat of accepting a bribe amounting to $2 million (£1.4 million) from Dr. Evans Kidero to facilitate his victory to become the governor of Nairobi during the 2014 election.⁶⁹ This view was affirmed by his defeated opponent Ferdinand Waititu, who also claimed "he had fresh evidence indicating that Tunoi received Sh200 million to declare Kidero as the governor."⁷⁰ It is probable that more judges of the highest court in the land may have benefitted from the alleged bribe. Further evidence suggested that the bribe amount was not $2 million but about $3 million for four judges, but two of the judges were paid separately.⁷¹

The new Chief Justice, David Maraga, has also stated that ten per cent of staff in the judiciary are involved in this corruption, thereby tainting the image of the judiciary. This ethos has pushed the Chief Justice to wage a campaign against corruption in the judiciary.⁷² Presently, the judiciary in Kenya is seen not only as a corrupt institution but its rulings are also seen as judicial populism. After the presidential election of 8 August 2017, the Supreme Court, composed of four judges, including Chief Justice David Maraga, agreed on the nullification of Uhuru's win. Despite the fact that two other judges Njoki Ndung'u and Jackton Ojwang made a decision on 1 September 2017 annulling the result of President Uhuru Kenyatta, he was retained as the President of Kenya.⁷³

As a result of this diversity in views by the judges, politicians have in turn attracted different opinions depending on their political orientations. For politicians who occasionally manipulate the votes of the people, the nullification of Kenyatta's win has been seen as the emergence of judicial populism - that is, judges are seen as meddling with the popular choice. A critical analysis of the situation calls for an examination of the three powers: executive, legislative and judicial. The representatives in the legislative executive powers are voted for by the people in terms of Article 94(1) and (2) and Article 129(1) and (2) respectively of the Constitution.⁷⁴ In contrast, the judicial power - in particular, the judges of the Supreme Court - are chosen by the president of the country and the Judicial Service Commission in terms of Article 166(1)(a) and (b). ⁷⁵ The election of a president of the country implies the choice of the people. However, judges, who have not been voted for by the people, may have taken the nullification decision in the interest of the people or they may₇₆have taken the decision following the procedure of election investigation.⁷⁶ For opposition leader Raila Odinga and his supporters, this decision is considered as a decision taken in favour of the people, but for President Uhuru Kenyatta and his supporters, it is also considered to be a decision against the people.⁷⁷

Indeed, financial insecurity as mentioned above supports the malfunctioning of the judiciary. Although each Constitution provides for a budget allocated to the members of the judiciary, this seems to have been ignored resulting in complaints by members of the judiciary relating to low salaries. The low salaries suggest either that government is unwilling to pay the judiciary or there is a lack of money in the state coffers. Since it is in the interest of the executive to subjugate and manipulate the judiciary to act according to its dictates, the former reason is likely to be correct. These factors serve as obstacles to a national judge in dispensing justice relating to international crimes in the same manner as the ICC.

3 2 Independence of the judiciary

The principle of an independent judiciary originates in the theory of separation of powers, whereby the executive, the legislature and the judiciary form three separate branches of government. Independence means that the judiciary must be able to decide on a case without being influenced by the executive, the legislature or any powerful person.

However, experience in Africa shows that judges are often subjected to pressures of different kinds, thereby compromising their ability to exercise their responsibilities.

3 2 1 Democratic Republic of Congo

In the DRC, the Constitution provides that the judicial power is independent of the executive and the legislative power.⁷⁸ Neither the executive nor the legislative power has the right to give orders to judges in the exercise of their judicial powers⁷⁹ However, the DRC's judicial system exemplifies a lack of independence relating to the administration of justice. Notwithstanding the principle of separation of powers enshrined in Article 149 of the Constitution, the executive continues to interfere with the judiciary.

In the DRC, military courts under the Military Criminal Code, which covers international crimes under the ICC Rome Statute, may only entertain serious crimes. However, several reasons make for a mediocre performance of the professional responsibilities of military justice,⁸⁰ such as financial insecurity as explained above, interference by the executive in the administration of justice in order to protect leaders of armed factions from being prosecuted in military courts, and political pressures on prosecutors and courts to abandon proceedings that have already begun a₈₁gainst former allies among the leaders of rebel or resistance movements.⁸¹

On 12 May 2006, the former Mayi-Mayi chief of North-Katanga Gédéon Kyungu Mutanga received protection from his former allies in the government in Kinshasa. This took the form of pressure to influence the investigation and, instead of being held in a cell, he was held in pre-trial detention at the officers' mess of the armed forces of the DRC (FARDC).⁸²

The murder of MaÏtre Charles Katambay, a member of the NGO Groupe des Sans Voix (group of those who have no voice) of the DRC Bar Association and of an association for the defence of judges that occurred on 25 May 2003 by a soldier from RDC-Goma (the Rassemblement Congolais Pour la Démocratie, a guerrilla rebel faction) in front of his house in Uvira. His work related to human rights activities is suspected to be the reason for his assassination.⁸³ The murder of MaÏtre Charles Katambay is a clear mishap and indication of the existing challenge of the physical protection of judges and legal personnel in general in national courts in Africa.

322 Kenya

Article 161(18 of the Kenyan Constitution provides for the independence of the judiciary.⁸⁴ However, the judiciary in Kenya also faces intimidation from the executive and legislative powers. After nullification of the August 2017 election results, judges have been threatened.⁸⁵ The Chief Justice David Maraga has denounced the intimidation of members of the judiciary by politicians. Judges and members of the judiciary often receive threats, especially from Uhuru Kenyatta's political party who are ready "to cut the judiciary down to size".⁸⁶ The Chief Justice has also disapproved of the conduct of the Inspector-General of the police, who has failed to provide security for the life and property of members of the judiciary who are under

threat.⁸⁷

Following the threats constantly received by judges, Femi Falana, human-rights lawyer, wrote to Diego Garcia Sayan, UN Special Rapporteur on the Independence of Judges and Lawyers, calling for an investigation into the attacks on the judges of Kenya:

"I am writing to respectfully request that you use your good offices and position to urgently investigate recent reports of attack on judges in Kenya, and to make it very clear to the Kenyan authorities that your mandate will not accept intimidation, harassment or any form of attacks against judges and other actors of the justice system ... individual judges, particularly of the supreme court, as well as other judicial officers and staff have been attacked, threatened and negatively profiled on social media ... I am seriously concerned that these attacks are coming at a time when the judiciary is starting to hear the 339 petitions already filed in various courts. The attacks on judges and court officials would seem to be politically motivated".⁸⁸

This struggle is meant to empower the judiciary to decide all the cases before it impartially in accordance with the law, without any restrictions, improper influences, and direct or indirect pressures from government or any powerful person for any reason. It is clear that most national courts and judges in Africa may be tempted to avoid certain cases relating to international crimes for fear of retaliation from the powerful whom they have indicted. The people indicted live in the same environment with the judges and also command numerous defence networks on the ground that could be directed against these courts. Conversely, for ICC judges, there are two reasons that those whom they prosecute may command little or no threat against them. First, judges are based in The Hague, disconnected from the environment of those prosecuted, thereby weakening the latter's influence. Secondly, the defence networks of the prosecuted are based in ground zero in Africa. This conclusively suggests that the ICC judge who indicts a sitting president or warlord is more inclined to act without fear or favour than the judge of a national court in Africa who is faced with numerous obstacles.

 

4 CONCLUSION AND RECOMMENDATIONS

4 1 Conclusion

Given the existence of numerous challenges for local African courts in complying with the principle of complementarity,, as demonstrated above, it is evident that much still needs to be done if this principle is to gain prominence in international criminal law. It should be noted that numerous dangers exist when states are allowed to refer cases to the ICC as delineated under the competence of referrals to the ICC. This is because in most African states, relinquishing power by an incumbent has not come easily.

The authors have discussed the various challenges that are faced by national courts in their attempt to implement the principle of complementarity. These shortcomings have stood in the way of local courts' addressing international crimes and dispensing justice to those who desperately need and deserve it. Owing to factors, among others, such as poor payment of local judges and lack of physical protection for them, it becomes difficult for these judges to rule in sensitive matters such as the prosecution of international crimes committed by the most powerful individuals in the state with the same degree of independence exercised by their counterpart-judges of the ICC.

National jurisdictions can only be said to be unable to prosecute international crimes within a domestic arena when the State has not yet domesticated the ICC Rome Statute. However, this article establishes that there are several national jurisdictions that have domesticated the ICC Statute, but which have nevertheless failed to prosecute these crimes. For instance, Kenya and the DRC, and also countries like South Africa, Chad and Malawi, among others, have failed to prosecute Al Bashir of Sudan for war crimes, even though they are parties to the Rome Statute. It follows that African national jurisdictions are unwilling to prosecute international crimes. Some of the challenges advanced above could explain why they are unwilling. In other words, it is suggested that these shortcomings exist as a result of the context within which justice is required to be meted out. The African environment is still predominantly governed and controlled by dictators and warlords who take no account of respect for human rights and justice.

Many citizens have become fed up with the authoritarianism of such African governments and have embraced rebellion as a last resort to overthrowing such illegitimate governments who have tightened their grip on power against the will of the people. Some of these countries are parties to the Rome Statute and some are not. A few examples of authoritarian governments in Africa are the DRC, Cameroon, Uganda and to a certain degree, Nigeria. In the course of such struggles, gross human-rights violations are bound to be committed by both factions. In these situations, the State is always quick to refer actions by rebels to the ICC as a means of eliminating opposition to their authority under the thin guise of attempting to curb human-rights violations, given that government itself cannot be absolved of gross human-rights violations resulting from confrontations. The nature of the referrals of Thomas Lubanga from the DRC and Joseph Kony from Uganda can attest to this paradigm.⁸⁹

For a state to accept jurisdiction over egregious crimes committed during an armed struggle by opposing warring factions simply means that the government is judge in its own cause; in most African states, as examined above, courts are spawn of the regime and separation of powers is mostly symbolic or nominal. As a consequence, national courts would rarely rule against a sitting head of state even if it were proven that he or she had committed gross human-rights violations.

Therefore, the principle of complementarity faces two major challenges or setbacks in its implementation domestically. If local courts intervene, the executive might manipulate the verdict to its advantage. Yet, the matter will only be referred to the ICC when it is politically expedient for the executive to do so, rather than when there is a genuine interest in meting out justice or rooting out impunity.

4 2 Recommendations

National interest should be considered in the course of responding to an international crisis. The principle of national jurisdiction to prosecute offenders in international human-rights law should be applied to everyone to avoid insubordination. If this view is ignored, a time will come when national courts start agitating against complementarity. For instance, it is said that Al Bashir has been targeted by the ICC over the commission of international crimes,⁹⁰ whereas George Bush and Tony Blair are still at large after committing the same international crimes in Iraq.⁹¹ The standard for indictment or prosecution should be uniform across the board.

It is recommended that the international community should adopt measures that expressly define the position of former heads of state, particularly in Africa. While the Rome Statute seems to remedy the existence of immunity of heads of state by providing that every person regardless of their position is subject to the jurisdiction of the court in instances where human rights have been violated, this cannot guarantee an effective capacity to prosecute, given that the ICC constitutes merely a complementary capacity to national jurisdictions, and not an exclusive jurisdiction in international matters.

It is also recommended that the African Union, together with the ICC, should be able to adopt resolutions or declarations to enforce the independence of the judiciary in Africa. The salaries of judges should be voted on directly by Parliament and should include huge financial incentives to discourage judges from becoming corrupt so that they may discharge their duty without fear or favour. The ICC, the African Union and national governments must finalise a pact on the creation of a security unit exclusively for the maximum protection of judges involved with international crimes. Such a measure would encourage and embolden judges to discharge their mandate fearlessly. At the same time, this measure would discourage implicated heads of state and warlords from threatening judges because they would be aware of such maximum protection and their determination to root out criminal responsibility in terms of international law.

This process would also inspire confidence and it certainly culminates in establishing the independence of the judicial power over executive power in African jurisdictions. Proper independence of the judiciary can lead to implementation of the rule of law and respect for international human rights in Africa.

All African states should be persuaded to implement the Rome Statute principles in order to ensure that grave and atrocious international crimes do not go unpunished and in order to end impunity at the national level with the help of complementarity.

 

 

1 Jurdi The International Criminal Court and National Courts: A Contentious Relationship (2016) 132.
2 Which crimes fall within the jurisdiction of the ICC? https://www.icc-cpi.int/about?ln=en (accessed 2018-11-03).
3 Burke-White "Implementing a Policy of Positive Complementarity in the Rome System of Justice" 2008 19 Criminal Law Forum 59.
4 Ibid.
5 Brandon and Du Plessis The Prosecution of International Crimes: A Practical Guide to Prosecuting ICC Crimes in Common Wealth States (2005) xi.
6 Du Plessis "Complementarity and Africa: The Promises of International Criminal Justice" 2008 African Security Review 156.
7 Ibid.
8 Du Plessis 2008 African Security Review 157.
9 Brandon and Du Plessis The Prosecution of International Crimes 17.
10 Ibid.
11 Fombad "Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa" 2010 55 The American Journal of Comparative Law 13.         [ Links ]
12 Bedner "An Elementary Approach to the Rule of Law" 2010 Hague Journal on the Rule of Law 67-68.
13 Macedo "The Princeton Principles on Universal Jurisdiction" in Macedo (eds) Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (2004) 18.
14 The Princeton Principles on Universal Jurisdiction (2001) 2.
15 (11 April 2000) 2000 ICJ.
16 Murungu "Immunity of State Officials and the Prosecution of International Crimes" in Murungu and Japhet (eds) Prosecuting International Crimes in Africa (2011) 56.
17 Amnesty International "DRC: Neglected Congolese Victims Deserve Justice Now" (2019) https://www.amnestyusa.org/reports/drc-neglected-congolese-victims-deserve-justice-now/2/ (accessed 2019-03-30).
18 Murungu in Murungu and Japhet (eds) Prosecuting International Crimes in Africa 58.
19 Amnesty International "The Democratic Republic of Congo (DRC)" http://demandjusticenow.org/drc/ (accessed 2018-11-03).
20 Murungu in Murungu and Japhet (eds) Prosecuting International Crimes in Africa 58.
21 Ibid.
22 Olugbuo "Positive Complementarity and the Fight Against Impunity in Africa" in Murungu and Biergon (eds) Prosecution of International Crimes in Africa (2011) 259.
23 Can also be cited as Military Prosecutor v Eliwo Ngoy & Ors RP 084/2006 12 April 2006.
24 Olugbuo in Murungu and Biergon (eds) Prosecution of International Crimes in Africa 260.
25 Imeodemhe The Complementarity Regime of the International Criminal Court: National Implementation in Africa (2017) 97.         [ Links ]
26 The global agreement was so called because the Congolese war has been termed by commentators as "Africa's world war". Many African countries were involved in the war, including, among others, Burundi, Rwanda, Uganda and Zimbabwe.
27 Amnesty International http://demandjusticenow.org/drc/.
28 Art 215 of the Constitution of the Democratic Republic of Congo 2006.
29 Murungu in Murungu and Japhet (eds) Prosecuting International Crimes in Africa 59.
30 Ibid.
31 Materu The Post-Election Violence in Kenya: Domestic and International Legal Responses (2015) 15.
32 Ibid.
33 Nicholas The International Criminal Court and the End of Impunity in Kenya (2014) 47.
34 International Centre for Transitional Justice "The Kenyan Commission of Inquiry of the Post-Election Violence" (2008) https://www.ictj.org/sites/default/files/ICTJ-Kenya-Dialogue-Inquiry-2008-English.pdf (accessed 2018-11-03) 1.
35 International Centre for Transitional Justice "Prosecuting International and Other Serious Crimes in Kenya" (April 2013) https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-Prosecutions-2013.pdf (accessed 2018-11-03) 1.
36 Pedritti Immunity of Heads of State and State Officials for International Crimes (2014) 261.
37 Ibid.
38 Pedritti Immunity of Heads of State 262.
39 Ibid.
40 International Centre for Transitional Justice https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-Prosecutions-2013. pdf 2.
41 Ibid.
42 Materu The Post-Election Violence in Kenya 94.
43 Novak The International Criminal Court: An Introduction (2015) 80.
44 Ibid.
45 Kenya for Peace with Truth and Justice "An Option for Justice? The International Crimes Division of the High Court of Kenya" (2014) http://kptj.africog.org/wp-content/uploads/2014/08/A_Real_Option_for_Justice_The_International_Crimes_Division.pdf (accessed 2018-11-03) 9.
46 International Centre for Transitional Justice https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-Prosecutions-2013.pdf 2.
47 Gentile "Understanding the International Criminal Court" in Plessis (eds) African Guide to International Criminal Justice (2008) 113.
48 Lattanzi "The International Criminal Court and National Jurisdictions" in Politi and Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity (2001) 80.
49 Gentile in Plessis (eds) African Guide to International Criminal Justice 100.
50 Lattanzi in Politi and Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity 180.
51 Ibid.
52 Lattanzi in Politi and Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity 181.
53 Ibid.
54 Gentile in Plessis (eds) African Guide to International Criminal Justice 101.
55 Security Council "Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court" (31 March 2005) http://www.un.org/press/en/2005/sc8351.doc.htm (accessed 2018-11-03).
56 Bedner 2010 Hague Journal on the Rule of Law 67-68.
57 Lesirela Providing for the Independence of the Judiciary in Africa: A Quest for the Protection of Human Rights (LLM mini-dissertation) 2003 1.         [ Links ]
58 Anti-Corruption Resources Centre "Overview of Corruption in the Democratic Republic of Congo" (October 2010) http://www.u4.no/publications/overview-of-corruption-and-anti-corruption-in-the-drc/ (accessed 2018-11-03).
59 Humanitarian News and Analysis "DRC: Judges Suspend Their Two Month Strike" http://www.irinnews.org/report/47909/drc-judges-suspend-their-two-month-strike (accessed 2018-11-03).
60 Ibid.
61 Rugege "Judicial Independence in Rwanda" 2006 424 Global Business and Development 533
62 Art 149(7) DRC Constitution states "The judicial power has a budget drafted by the Superior Council of the Magistrature and transmitted to the Government to be included in the general budget of the State".
63 APS "Le salaire des hauts magistrats porté á 5 millions par l'allocation d'une indemnité différentielle (ministre)" The salary of senior magistrates increased to 5 million by the allocation of a differential allowance (minister) 21 December 2011 http://www.seneweb.com/news/Afrique/le-salaire-des-hauts-magistrats-porte-a-5-millions-par-l-rsquo-allocation-d-rsquo-une-indemnite-differentielle-ministre_n_56162.html (accessed 2018-10-19).
64 York "Democratic Republic of Congo Teeters on Edge of 'Catastrophe'" (04 June 2017) https://beta.theglobeandmail.com/news/world/democratic-republic-of-congo-teeters-on-edge-ofcatastrophe/article35200017/?ref=http://www.theglobeandmail.com & (accessed 2017-10-11).
65 Ibid.
66 Ibid.
67 Ibid.
68 Art 160(3) of the Constitution of Kenya 2010.
69 Osiro "Corruption in Kenya Supreme Court Judges Accused of Accepting Millions in Bribes" https://www.huffingtonpost.com/washington-osiro/corruption-in-kenya-supreme-court_b_9154580.html (accessed 2018-10-17).
70 Ibid.
71 Ibid.
72 Gitonga "There is Corruption in the Judiciary, says Chief Justice David Maraga" (21 October 2016) https://www.standardmedia.co.ke/article/2000220603/there-is-corruption-in-the-judiciary-says-chief-justice-david-maraga (accessed 2018-10-17).
73 Chengeta "Politics, Populism and the Law: Who Really Speaks for Kenyans?" (1 October 2017) https://www.standardmedia.co.ke/article/2001256132/politics-populism-and-the-law-who-really-speaks-for-kenyans (accessed 2017-10-17).
74 Art 94 states: "(1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. (2) Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty." Art 129 states: "(1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution. (2) Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit."
75 Art 166 states: "(1) The President shall appoint- (a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and (b) all other judges, in accordance with the recommendation of the Judicial Service Commission."
76 Chengeta https://www.standardmedia.co.ke/article/2001256132/politics-populism-and-the-law-who-really-speaks-for-kenyans.
77 Ibid.
78 Art 149(1) of the Constitution of the Democratic Republic of Congo 2006 states: "The judicial power is independent of the Legislative Power and of the Executive Power".
79 Art 151(1) and (2) of the DRC Constitution states: "The Executive power may neither give orders to a judge in the exercise of his jurisdiction, nor decide on disputes, nor obstruct the course of justice, nor oppose the execution of a decision of justice. The legislative power may not decide on jurisdictional disputes, or modify a decision of justice, nor oppose its execution".
80 The Open Society Initiative of Southern Africa and AfriMAP "Democratic Republic of Congo Military Justice and Human Rights: An Urgent Need to Complete Reforms" (2009) http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf (accessed 2018-11-03) 7.
81 The Open Society Initiative of Southern Africa and AfriMAP http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf 12.
82 The Open Society Initiative of Southern Africa and AfriMAP http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf 7.
83 Refworld "Attack on Justice: Democratic Republic of Congo" (2 April 2003) www.refworld.org/pdfid/48abdd680.pdf (accessed 2018-11-03).
84 Art 161(1) states: "In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority."
85 BBC "Maraga Hits Back at 'Threats' over Kenya Election Re-Run" (19 September 2017) http://www.bbc.com/news/world-africa-41322927 (accessed 2017-10-19).
86 Muthoni "Maraga Accuses the Executive and Parliament of Attempting to Control the Judiciary" (20 September 2017) https://www.standardmedia.co.ke/article/2001255034/maraga-accuses-the-executive-and-parliament-of-attempting-to-control-the-judiciary (accessed 2017-10-19).
87 Ibid.
88 The Cable "Falana Asks UN to Investigate Attacks on Judges in Kenya" (26 September 2017) https://www.thecable.ng/falana-asks-un-investigate-attacks-kenyan-judges (accessed 2018-10-19).
89 Wanki "Exploring the Interrelationship between the Responsibility to Protect and the Principle of Complementarity in Africa: Conceptual Ambiguities and Contestable Assumptions" 2018 4 Journal of South African Law 822.         [ Links ]
90 The Prosecutor v. Omar Hassan Ahmad Al Bashir ICC-02/05-01 /09.
91 Caplan "Bush and Blair Carry on Unpunished for the Crimes of the Iraq War" (2018) The Globe and Mail https://www.theglobeandmail.com/news/politics/bush-and-blair-carry-on-unpunished-for-the-crimes-of-the-iraq-war/article31118851/ (accessed 2019-04-10).

^rND^sFombad^rND^sWanki^rND^1A01^nBramley Jemain^sLemine^rND^1A01^nBramley Jemain^sLemine^rND^1A01^nBramley Jemain^sLemine

ARTICLES

 

Developing a strategy for efficient environmental authorisation of activities affecting wetlands in South Africa: towards a wise-use approach¹

 

 

Bramley Jemain Lemine

LLB LLM MTech Lecturer, Nelson Mandela University

 

 

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SUMMARY

South Africa is a party to the Convention on Wetlands of International Importance especially as Waterfowl Habitat of 1971 (also referred to as the Ramsar Convention). Article 3(1) of the Ramsar Convention makes provision for the wise use of wetlands, which is defined as the "maintenance of the ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development". The Conference of the Parties has agreed on inherent weaknesses that could lead to the hampering of wise use. These weaknesses include, but are not limited to, authorities working in isolation; and the lack of communication between public and private sectors or technical personnel (environmental impact assessment specialists).Within the enabling provisions of South Africa's EIA regulations, reference is made to "water source", "water resource", "wetland" and "ecosystem". All these terms are read to include a wetland. However, whereas the terms "water source", "water resource" and "wetland" are defined in the National Water Act 36 of 1998 (NWA), an "ecosystem" is defined in the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA), and "water source" is defined in the Conservation of Agricultural Resources Act 43 of 1983 (CARA). Furthermore, the administration of the NWA is with the Department of Water and Sanitation, while NEMBA is with the Department of Environment, Forestry and Fisheries, and CARA is with the Department of Agriculture, Land Reform and Rural Development. This multiplicity, combined with the application of the various specific environmental management acts (SEMAs), complicates the manner in which an EIA application is considered. This is so in that the national environmental framework casts the net wide in identifying the competent authority, but also in its effect on wise use decision making on activities pertaining to wetlands. In light of the aforementioned, this article aims to address the shortfalls and make recommendations that promote wise use.

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1 BACKGROUND

The Convention on Wetlands of International Importance especially as Waterfowl Habitat of 1971 (also referred to as the Ramsar Convention) was the first international agreement promulgated to address the conservation of wetlands. The Ramsar Convention aims to make provision for a framework of international cooperation for the wise use and conservation of wetlands and its related resources. Parties to the Ramsar Convention desired to "stem the progressive encroachment on and the loss of wetlands now and in the future" and to "combin[e] far-sighted national policies with coordinated international action".² The Ramsar Convention was entered into by South Africa on 21 December 1975 without any reservations deposited to the Secretary-General.³ Thus, South Africa is bound to the provisions of the Ramsar Convention.

Central to promoting wetlands protection and conservation is the enabling provision, article 3(1) of the Ramsar Convention, which makes provision for the wise use of wetlands - interpreted to mean the sustainable use of the resource.⁴ Sustainable use, within this context, is subject to each party's interpretation of sustainable development. Promoting wise use in the light of environmental impact assessment legislation, the Ramsar administration advised that "[g]iven the ecological sensitivity of wetlands, Parties should ensure wherever possible that under that relevant legislation: Environmental considerations concerning wetlands are integrated into planning decisions in a clear and transparent manner."⁵

Within the enabling provisions of South Africa's Environmental Impact Assessment (EIA) regulations, reference is made to a "water source", "water resource", "wetland" and "ecosystem".⁶ All these terms are read to include a wetland. It is equally important to indicate that the word "environment" is read to include a wetland,⁷ and this author has previously recommended a legislative amendment for the inclusion of the words "wetland environment" specifically.⁸ Thus, on the face of it, the EIA regulations regulate this domain by way of reference to the aforementioned terms. The terms "water source", "water resource" and "wetland" are defined in the National Water Act (NWA);⁹ an "ecosystem" is defined in the National Environmental Management: Biodiversity Act (NEMBA);¹⁰ and "water source" is defined in the Conservation of Agricultural Resources Act (CARA).¹¹ Wetlands falling within protected areas (National Environmental Management: Protected Areas Act 57 of 2003) and those forming part of heritage sites (World Heritage Convention Act 49 of 1999) are excluded from this article due to the nature of the protection afforded here. The administration of the NWA is by the Department of Water and Sanitation (DWS); that of NEMBA by the Department of Environment, Forestry and Fisheries (DEFF); and CARA is administered by the Department of Agriculture, Land Reform and Rural Development (DALRRD). Within each department is a competent authority, charged with the power of granting or refusing environmental authorisations. This multiplicity, combined with the application of the various SEMAs (NWA, NEMBA and CARA), make it troublesome to identify the competent authority for granting or refusing environmental authorisations for wetlands, but more so for the way in which decision-making is made. Therefore, before development or any activity in and around a wetland may commence, the competent authority is required, within the specified time, either to grant or refuse the activities, along with reasons.

The World Wildlife Fund (WWF) submitted a list of activities and events that constitute causes for the disappearance of wetlands. These include, but are not limited to: the conversion of wetlands for commercial development, drainage schemes, extraction of minerals and peat, overfishing, tourism, siltation, pesticide discharges from intensive agriculture, toxic pollutants from industrial waste, and the construction of dams and dikes.¹² These activities may only occur subject to a competent authority granting environmental authorisation to an applicant.¹³

However, which department is the decision-making body on granting or refusing environmental authorisation for EIA applications affecting wetlands is unclear, as is the manner in which they are considered.

 

2 VALUE OF WETLANDS FOR PROMOTING FUNDAMENTAL HUMAN RIGHTS

Wetlands provide an array of important functions to both the natural environment and humans. Falkenmark and Rockström have stated that wetlands function as the "kidneys of a landscape"; they improve water quality through the absorption and sedimentation of certain pollutants and nutrients.¹⁴ They function as a natural filter by trapping nutrients, sediments, and bacteria. By doing so, they improve water quality.¹⁵ The nutrients thus trapped by a wetland allow the growth of various plants, which in turn attract various creatures by providing shelter and food.¹⁶ Contrary to the belief that wetlands are water-producing resources, they are in fact water-consuming, as they facilitate groundwater recharge during flood season.¹⁷ This function is crucial in areas surrounded by spaces used for domestic, agricultural and other purposes.¹⁸ In the context of climate-change complications, wetlands also provide a vital service by acting] as a carbon sink, contributing greatly towards reducing carbon emissions.¹⁹

Wetlands fulfil human needs by providing a source of grazing and reeds for the construction of huts.²⁰ If there is a failure to recognise these valuable functions of wetlands, constitutionally recognised socio-economic rights entrenched in sections 26 (housing) and 27 (water and food security) of the Constitution of the Republic of South Africa, 1996 (the Constitution) will arguably be diminished. Both these sections oblige the State to "take reasonable legislative and other measures within its available resources, to achieve the progressive realisation" of these rights.²¹ The interpretation of "available resource" cannot be limited to financial measures. It is submitted that wetlands qualify; their value should be viewed through their availability as an "available resource" that must be protected for the benefits they provide for humans and the natural environment. Stated plainly, wetlands are a resource that could, if not protected, be damaged irreversibly. If the State fails to protect and conserve the resource while it is available, this will put further pressure on the State to engineer for the natural services provided by wetlands. The environmental-law clause found in section 24 of the Constitution guarantees that everyone has a right to an environment that is not harmful to their health and well-being;²² and to have it protected through reasonable legislative measures.²³ These legislative measures must be well supported by policies and programmes implemented by the executive.²⁴ Put differently, strategies to inform wetland legislative and policy measures are required.

The primary role player in wetland protection and conservation, from a legislative perspective, is the State - and more narrowly, for purposes of this research, the competent authority.

 

3 COMPETENT AUTHORITY

In terms of the national environmental framework Act, NEMA, a competent authority,

"in respect of a listed activity or specified activity, means the organ of state charged by this Act with evaluating the environmental impact of that activity and, where appropriate, with granting or refusing an environmental authorisation in respect of that activity."²⁵

Central to the definition is an "organ of state" which, according to the Constitution, is "any department of state or administration; or functionary or institution".²⁶ At this point of the investigation, the scope for identifying the competent authority has not been sufficiently narrowed as the competent authority could be referring to any of the environmental-matter ministries by way of the "organ of state", thus casting the net wide. In the case of Van Huyssteen NO v Minister of Environmental Affairs and Tourism,²⁷albeit that the main issue was about access to information as it relates to rezoning, the court had to decide for the first time on development in terms of the environmental impact in the context of the enabling provisions of the Ramsar Convention and Environmental Conservation Act 73 of 1989. The court confirmed the obligation of the State, in this case, to protect the Langebaan Lagoon, "which is part of a sensitive ecosystem of international importance."²⁸ The court therefore temporarily declined the application for development of the steel mill pending, amongst other things, the board's investigation of the environmental impact on the said wetland²⁹ The court further considered whether the harm is irreparable and whether there will be any alternative remedy.³⁰ However, "irreparable harm" was not applied to or in reference to the wetland.³¹ In this instance, the then-Department of Environmental Affairs and Tourism was arguably identified as the competent authority. Worth mentioning here is that this case was decided when environmental legislation, including NEMA, was either in its infancy or nonexistent.

Section 24C of NEMA is titled "Procedure for Identifying Competent Authority". NEMA unequivocally states that the Minister (defined as "the Minister responsible for environmental matters"), or the MEC with the concurrence of the Minister, must identify the competent authority who will be responsible for granting environmental authorisations in respect of the said activities.³² Section 24C(2) in peremptory terms and as a general rule indicates that the Minister is the competent authority for the duty set out in section 24C(1), especially with matters relating to international environmental commitments or relations, or where the footprint traverses international boundaries or falls within the boundaries of more than one province.³³ The exception to the rule is created by section 24C(2)(d), where it is indicated that the competent authority may be: (i) a national department; (ii) a provincial department responsible for environmental affairs or organ of state; or a (iii) statutory body. Furthermore, section 42(1) of NEMA empowers the Minister to delegate his or her power or duty in terms of NEMA or any specific environmental management Act. This further complicates the investigation as the competent authority of DEFF, for example, could be the national office or provincial office of the said department.

In City of Cape Town v Really Useful Investments 219 (Pty) Ltd,³⁴the court quoted the principle enunciated in the Maccsand³⁵case, which appears to address part of the central issue of this research by stating:

"Where [environmental] authorization for a specified activity is required under any number of laws or by-laws, the developer must obtain authorization under each piece of legislation, albeit the repository of power is the same entity under the various legal instruments concerned."³⁶

The abovementioned position is arguably modelled on section 24(4)(a)(i) of NEMA, which requires the "coordination and cooperation between organs of state in the consideration of assessments where an activity falls under the jurisdiction of more than one organ of state". This article highlights that the environmental assessment practitioner must in reality submit an application to each department concerned. The consequence is that each department, within its set timeframe, provides its individual environmental authorisation. This approach negates the achievement of integrated decision making. Being cognisant of the nature and complexity of the administration of wetlands, it is unclear where the competency of one competent authority commences and another ends. This is counterproductive for implementing clarity and transparency in the provision of environmental authorisation for activities pertaining to wetlands.

 

4 ENVIRONMENTAL AUTHORISATION

Section 24(1) of NEMA makes provision for the acquisition of environmental authorisation where:

"potential consequences for or impacts on the environment of listed activities or specified activities must be considered, investigated, assessed and reported on to the competent authority or the Minister ... except in respect of those activities that may commence without having to obtain an environmental authorisation."

The tool for which environmental authorisation is required is referred to as an EIA. An EIA is described as "a systematic process of identifying, assessing and reporting environmental impacts associated with an activity is provided and includes a basic assessment and scoping and environmental impact assessment".³⁷

In relation to the specified activities, section 24H of NEMA empowers a registered environmental assessment practitioner (EAP) to be appointed by the applicant (developer) to manage the application process.³⁸ NEMA defines an EAP as "[t]he individual responsible for the planning, management, coordination or review of environmental impact assessments" The EAP subsequently submits the application to the correct competent authority.³⁹ Although this competent authority, at this point, according to the Maccsand case quoted in City of Cape Town v Really Useful Investment case and section 24(4)(a)(i), is every department concerned. The consequence is that this approach promotes silo-working networks, which goes against the grain of wise use, as discussed elsewhere in greater detail.

To give effect to section 24 of NEMA, three EIA regulations were passed to identify or list specific activities for which environmental authorisation is required; and to identify their competent authorities. Briefly, activities in Listing Notice 1 are smaller scale activities, the impacts of which are reasonably known and can be easily managed.⁴⁰ For activities in Listing Notice 2, scoping and EIA is required; here activities are considered to be higher risk activities that are likely to have significant impacts on the environment that cannot be easily predicted.⁴¹ Listing Notice 3 relates to activities requiring basic assessment and which are undertaken in specific geographical areas.⁴² As to which listing must be consulted, an "ecosystem" is only marked in EIA Listing Notice 3.⁴³ However, a "wetland" and a "watercourse" are marked in EIA Listing Notices 1 and 2.⁴⁴ There are no guidelines categorising these "distinct" systems. This creates legal uncertainty, and where the law is not certain, arguably, implementation becomes problematic.

The EIA listings identify a "wetland", "watercourse" (both defined in the NWA) and "ecosystem" (defined in NEMBA), but not a "water source" (defined in CARA), although the latter is read in CARA to include a wetland. Again, the administration of these water bodies, albeit essentially the same thing, are managed by different environmental-matter departments and different environmental management Acts. This complicates and endangers the protection and conservation of wetlands. The hypothesis is that where legislation is not aligned, an opportunity emerges for disintegration in wetland (environmental) management, which impedes the wise use of wetlands.

 

5 WISE USE OF WETLANDS AND SUSTAINABLE DEVELOPMENT

The wise use of wetlands is defined as the "maintenance of the ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development".⁴⁵ The "ecosystem approach" is however defined as a "strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way".⁴⁶ NEMBA defines an ecosystem to mean "a dynamic complex of animal, plant and micro-organism communities and their nonliving environment interacting as a functional unit".⁴⁷ A wetland falls within the concept of an ecosystem.

An ecosystem approach could be considered through a particular lens, integrating conservation and sustainable use through management⁴⁸ - for example, an administrator within an environmental-matter department must grant environmental authorisation.

The administrator is obliged to promote "wise use" within the context of sustainable development. The concept of sustainable development can be traced back to the Stockholm Conference of 1972. Section 1 of NEMA provides that sustainable development means "the integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations". Sands, without providing a definition for sustainable development, identifies elements that comprise the legal concept:

• "The need to take into consideration the needs of present and future generations;

• The acceptance, on environmental protection grounds, of limits placed upon the use and exploitation of natural resources;

• The need to integrate all aspects of the environment and development; and

• The need to interpret and apply rules of international law in an integrated and systematic manner."⁴⁹

It has been submitted that the wise use of specific wetlands is an integral part of sustainable development.⁵⁰ Considering the above, it is evident that wise use within the sustainable development framework requires the promotion of integrated environmental management aspects for the benefit of present and future generations, and that a "silo approach" to addressing environmental issues cannot exist within this realm.

 

6 INTEGRATED ENVIRONMENTAL MANAGEMENT

Chapter 5 of NEMA is titled "Integrated Environmental Management" (IEM) and houses the entire section 24 and related provisions of environmental authorisations and EIA. Furthermore, NEMA's stated purpose is

"to provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote cooperative governance and procedures for coordinating environmental functions exercised by the organ of state; to provide for certain aspects of the administration and enforcement of other environmental management laws; and to provide for matters connected therewith."

The embodiment of cooperative environmental governance is articulated by Du Plessis who avers that "South Africa's policy and legislation have served to strengthen cooperative governance, especially with regard to environmental matters."⁵¹

This research shines a light on section 24L, which makes provision for the "Alignment of environmental authorisation". Section 24(L)(1) provides:

"[a] competent authority empowered...to issue an environmental authorisation and any other authority empowered under a specific environmental management Act may agree to issue an integrated environmental authorisation".

This provision promotes integration between departments for the issuing of environmental authorisations, which appears to address the administrative issue with which this article is concerned. The shortfall in section 24(L)(1) is its failure to create an obligation to issue an integrated environmental authorisation (IEA); this is evident by the inclusion of the word "may". Furthermore, NEMA fails to define IEA or provide guidelines to assist departments in engaging with IEAs. Should the departments choose to issue an IEA, section 24(L)(2)(a) prescribes that cognisance must be given to enabling provisions of NEMA, other law or SEMA. To implement the purpose of NEMA would arguably make an IEA compulsory. This would fulfil the Ramsar administration's recommendation to integrate decisions in a clear and transparent manner, which also has the effect of promoting cooperative environmental governance, as envisaged in NEMA's preamble. "Other law" could be read to include the Constitution.

Chapter 3 of the Constitution makes provision for the broad principles of cooperative government in terms of section 41(1)(/7), which provides:

"All spheres of government and all organs of state within each sphere must-(h) co-operate with one another in mutual trust and good faith by-

(i) fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one another on, matters of common interest;

(iv) co-ordinating their actions and legislation with one another;

(v) adhering to agreed procedures."

Du Plessis submits that despite this constitutional and legislative imperative, turf wars, unwillingness of officials, and fragmentation sometimes frustrate this ideal of cooperative environmental governance.⁵² Cooperative environmental governance refers to the various spheres of government

(national, provincial and local) mandated to perform functions relating to the environment.⁵³

Section 2 of NEMA provides for a set of sustainable development principles. Section 2(4)(r) describes a wetland as a "sensitive, vulnerable, highly dynamic and stressed ecosystem". It continues by providing that specific attention is required in the management and planning procedures of these systems. To provide clearly defined and/or identified attention to wetlands as required could arguably be interpreted to mean that a "coherent and consolidated" approach is required, and certainly not a framework that creates legal uncertainty or vagueness. The Ramsar administration requires the implementation of EIA into planning-law mechanisms.⁵⁴ Planning-law mechanisms are extensive within our current framework; however, the focus here is on EIAs, as provided for in NEMA. The inclusion of EIAs as a planning tool within the scope of wetland protection is vital. It is submitted that EIAs control development through environmental planning, the aim of which is sustainable development.⁵⁵

In the current framework, without legal intervention, one provincial environmental-matter department might refuse a development application while another provincial environmental-matter office might grant it, thus arguably leading to friction between government departments. Furthermore, the non-prescriptive nature of an IEA, in terms of section 24(L)(1), is a missed opportunity for promoting the objectives of cooperative environmental governance.

 

7 ANALYSIS

Permissible activities impacting wetlands are managed by a competent authority by way of environmental authorisation, as the activities may not commence without such authorisation. The power of permitting and managing the activities and, in the bigger scheme of things, protecting wetlands, sits with the competent authority.

The use of the words "ecosystem", "water source", "water resource" and "wetland" within legislation and the EIA regulations themselves creates uncertainty, as they are all read to protect one resource, for example. Irrespective of its expression, the series of benefits provided by this resource are vital to the natural environment and humankind.

This resource is not regulated by one piece of legislation; or managed by one environmental-matter department; but, in each case, by three. Practically, this multiplicity could result in lack of accountability, conflict, loss of resource, poor coordination and governance issues, to mention a few. These problems hinder adherence to the constitutional principle of cooperative government, and lead to the abrogation of the concept of IEM under which environmental authorisation falls. Similarly, IEM does not suggest that only one department should be the competent authority. On the contrary, it is arguably indicative, by way of linking the constitutional provision of cooperative government and IEM, that environmental authorisation should be pursued as a joint venture. This idea is supported by section 24(2)(a)(i), and the more so by section 2(4)(l) of NEMA, which provides that "there must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment". This section is coined a sustainable development principle. The hypothesis is therefore that coordination of legislation, policies or regulations would bolster the management of wetlands by the different departments.

Note again that "environment" is read to include wetlands.⁵⁶ Thus, the concept of cooperative government, cooperative environmental governance, the purpose of NEMA and the legislative framework does not suggest that there should be only one competent authority. Rather, innovative mechanisms should be explored in promoting IEM for wetland authorisations, from the commencement stage (application) to the final decision (outcome).

South African planning law must be lauded for incorporating wetland considerations within the body of planning law (EIA), which is a concern raised by the Ramsar administration. However, inclusion does not necessarily constitute compliance if the said provisions are inconsistent with the purpose for which they were created. It is clear that for EIAs pertaining to wetlands, there are some inconsistencies and uncoordinated efforts that lead to decisions being problematic. The adequacy of this tool (EIAs) in its current form abrogates spirit of Ramsar which instructs contracting parties to coordinate planning mechanisms that bolster the sustainable use of wetlands.⁵⁷ Key in the submission is the word "coordinate.

 

8 RECOMMENDATION

The wise-use approach calls for a strategy of integration of matter within the context of sustainable development. In application, such an approach encompasses integration of the management of land, water and living resources on the one hand, balanced with social, environmental and economic consideration through planning, implementation and decision-making on the other hand. This calls for a multifaceted strategy for addressing the process of considering applications for activities for authorisation. The ecosystem approach is represented in this that the DALRRD's administers the issue of land, the DWS administers water, and DEFF, living resources. However, failure to integrate processes and decision-making could have devasting effects on the future of the environment and South Africa.

8 1 Strategies

8 1 1 Environmental management

The ecosystem approach is representative of the various aspects that constitute a wetland as they relate to the various environmental departments' mandates in line with those individual aspects (land, water and living resources). Supporting the 2030 Agenda for Sustainable Development (UNSDG), to which South Africa subscribes and reports, the Ramsar administration calls for "increased integration and synergies across multilateral agendas".⁵⁸ Note that the legislation pertaining to wetlands as administered by various environmental departments is not the primary concern. This article raises the concern that implementation is stifled by legal uncertainty and vagueness created by our current legal framework, with specific reference to the lack of integration or wise use. Yet, environmental authorisation for wetlands is only one aspect raised. Administrative bodies must be pulled together by plausible strategies to overcome many other uncertainties that perpetuate the failure to promote wise use. Where the law is uncertain, space for abuse is created.

8 1 2 The Constitution

The Constitution's promotion of environmental conservation and protection does not in any way prevent or abrogate policy development. Instead, the promotion of environmental (wetland) conservation and protection places a positive obligation on the State to enact legislative measures that will bolster sustainable development.

8 1 3 NEMA and the EIA regulations

To implement IEM and wise use properly, section 24(L)(1) must be amended to read that IEA is mandatory with activities triggering different departments. Such an amendment would arguably promote departmental integration for other environmental media. Furthermore, the lack of a clear definition of IEA and guidelines for implementing an IEA should be addressed. Environmental authorisation for activities pertaining to wetlands should be modelled on agreed guidelines by the competent authorities.

In the spirit of the UNSDGs, section 41 of the Constitution and IEM, and keeping in mind the benefits provided by wetlands, it is recommended that the EIA regulations be amended. The amendment should identify DEFF, the DWS and the DALRRD as the competent authority. As prescribed in section 24(2)(a)(i), the EAP would submit the application to each department. From this point onward, a policy directive could guide the way these departments consult and decide together as a single competent authority and submit an IEA. This would promote section 41(1)(h)(i)-(v) of the Constitution. Where an EAP (specialist) fails to include a department, then that application must be resubmitted, and any process that commenced must start de novo. For purposes of brevity, examples of conflict resolution mechanisms are not discussed here. It should be noted that NEMA and EIA regulations are time bound for decision-making, and this must be taken into consideration when drafting the policy directive. The recommendation as it relates to time period could be extended to ensure proper engagement, decision-making and conflict resolution in the interests of preventing the extinction of the valuable wetlands resource. Departments do not have to meet physically but could engage with each other and make decisions on other media platforms (such as Microsoft Teams or Zoom). Such platforms create an exciting opportunity for departmental integration on different levels. Matters relating to monitoring and evaluation - for example, after granting the authorisation - can be addressed here too, in order to eliminate duplication.

Interestingly, in January 2020, the Minister of Environment, Forestry and Fisheries published Schedules in a notice that set out "minimum criteria for reporting of identified environmental themes when applying for environmental authorisation".⁵⁹ This notice applies specifically to impacts on terrestrial animal species, along with levels of sensitivity (very high/high/medium/low). In terms of the National Biodiversity Assessment Report 2018 (NBAR), out of the135 inland wetlands, 83 fall within the "critically endangered" category.⁶⁰ Nothing prevents the Minister from considering and publishing a similar notice for wetlands, based on the research contained in the NBAR by the South African National Biodiversity Institute.

In order to bolster integration further, research suggests that stakeholders of wetland management and wise use are not limited to environmentalmatter departments but include local and scholarly communities.⁶¹

 

9 CLOSING REMARKS

This research has looked into the area merely through a single lens. Other legal obligations having a direct bearing on or incidental to the law and wetlands may be stifled by the way sectoral environmental legislation regulates and aims to govern wetlands. This research may serve as a tool to address issues pertaining to wetland EIA authorisation where sectors cut across each other and sectoral legislation and management intersect. Perhaps the future will see only one department of environmental matters.

Currently, there is no national policy or SEMA for wetlands as there is for the coast, biodiversity, protected areas and water, to mention a few. Within such a policy, there should be a specific section dedicated to the environmental authorisation submission process as it relates to activities around wetlands.

 

 

1 Adapted from Lemine South Africa's Response in Fulfilling Her Obligations to Meet the Legal Measures of Wetland Conservation and Wise Use (Unpublished thesis, CPUT) 2018.         [ Links ]
2 Preamble of the Ramsar Convention.
3 Ramsar Convention Secretariat "South Africa" (undated) https://www.ramsar.org/wetland/south-africa (accessed 2020-03-01).
4 Birnie and Boyle International Law and the Environment (2009) 674; De Klemm and Shine Wetlands, Water and the Law: Using Law to Advance Wetland Conservation and Wise Use (1999) 47; and Sands Principles of International Environmental Law (2003) 604.
5 Ramsar Convention Secretariat "Laws and Institutions: Reviewing Laws and Institutions to Promote the Conservation and Wise Use of Wetlands" (2010) https://www.ramsar.org/sites/default/files/documents/pdf/lib/hbk4-03.pdf (accessed 2020-03-01) 39.
6 GN R327 in GG 40772 of 2017-04-07; GN R325 in GG 40772 of 2017-04-07; GN R324 in GG 40772 of 2017-04-07.
7 In terms of s 1 of the National Environmental Management Act 107 of 1998 (NEMA), the word "environment" means "the surroundings within which humans exist and that are made up of-
(i) the land, water and atmosphere of the earth;
(ii) microorganisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and
(iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and wellbeing".
8 Lemine South Africa's Response in Fulfilling Her Obligations 4.
9 S 1 of 36 of 1998.
10 S 1 of 10 of 2004.
11 S 1 of 43 of 1983.
12 World Wildlife Fund "Half of the World's Wetlands Have Disappeared Since 1900. Development and Conversion Continue to Pose Major Threats to Wetlands, Despite their Value and Importance" 2 February 2018 https://wwf.panda.org/7322330/Half-of-the-worlds-wetlands-have-disappeared-since-1900 (accessed 2019-11-12) 1.
13 S 24 of NEMA.
14 Falkenmark and Rockström Balancing Water for Human and Nature (2005) 15         [ Links ]
15 Wepener, Malherbe and Smit "Water Resources in South Africa" in Strydom and King (eds) Environmental Management in South Africa (2018) 363.
16 Falkenmark and Rockström Balancing Water for Human and Nature 14.
17 Falkenmark and Rockström Balancing Water for Human and Nature 16.
18 Turpie "Environmental Management Resources Economics" in Strydom and King (eds) Environmental Management in South Africa (2009) 45.         [ Links ]
19 Ibid.
20 Day "Rivers and Wetlands" in Strydom and King (eds) Environmental Management in South Africa (2009) 842-843.
21 Ss 26(2) and 27(2) of the Constitution of the Republic of South Africa, 1996.
22 S 24(a).
23 S 24(b).
24 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 42.
25 S 1 of the National Environmental Management Act 107 of 1998.
26 S 239 of the Constitution.
27 1995 (9) BCLR 1191 (C) 1191 C and D.
28 Van Huyssteen NO v Minister of Environmental Affairs and Tourism supra 1198E.
29 Van Huyssteen NO v Minister of Environmental Affairs and Tourism supra 1206E
30 Van Huyssteen NO v Minister of Environmental Affairs and Tourism supra 1217D.
31 Van Huyssteen NO v Minister of Environmental Affairs and Tourism supra 1217E.
32 S 24C(1) of NEMA.
33 S 24C(2)(c)of NEMA.
34 (21106/2014) [2018] ZAWCHC 6; [2018] 2 All SA 65 (WCC).
35 Maccsand (Pty) Ltd v City of Cape Town 2012 (4) SA 181 (CC).
36 Macssand supra par 64.
37 GN R326 in GG 40772 of 2017-04-07.
38 Oosthuizen et al "National Environmental Management Act 107 of 1998 (NEMA)" in Strydom and King (eds) Environmental Management in South Africa (2018) 168.
39 Ibid.
40 GN R327 in GG 40772 of 2017-04-07.
41 GN R325 in GG 40772 of 2017-04-07.
42 GN R324 in GG 40772 of 2017-04-07.
43 Ibid.
44 GN R327 in GG 40772 of 2017-04-07; GN R325 in GG 40772 of 2017-04-07.
45 Birnie and Boyle International Law & the Environment 674.
46 Paterson "Biological Diversity" in Strydom and King (eds) Environmental Management in South Africa (2018) 524.
47 S 1 of NEMBA.
48 Paterson in Strydom and King (eds) Environmental Management in South Africa 524.
49 Sands Principles of International Environmental Law (2003) 253.
50 De Klemm and Shine Wetlands, Water and the Law: Using Law to Advance Wetland Conservation and Wise Use (1999) 49.         [ Links ]
51 Du Plessis "Legal Mechanisms for Cooperative Governance in South Africa: Successes and Failures" 2008 23 SAPR/PL 87 87.
52 Du Plessis 2008 SAPR/PL 87.
53 Nel and Alberts "Environmental Management and Environmental Law in South Africa: An Introduction" in Strydom and King (eds) Environmental Management in South Africa (2018) 44.
54 Ramsar Convention Secretariat https://www.ramsar.org/sites/default/files/documents/pdf/lib/hbk4-03.pdf 36-37.
55 So "Environmental Law of Korea in Nicholas, Robinson, Burleson and Lin-Heng Lye (eds) Comparative Environmental Law and Regulation (2019) §§34:16.         [ Links ]
56 Lemine South Africa's Response in Fulfilling Her Obligations 4.         [ Links ]
57 Art 5.
58 Ramsar Convention Secretariat "Scaling Up Wetlands Conservation, Wise Use and Restoration to Achieve the Sustainable Development Goals" (July 2018) https://medwet.org/wp-content/uploads/2018/07/wetlandssdgse.pdf (accessed 2020-0229) 2.
59 GN R655 in GG 42946 of 2020-01-10. Procedures to be followed for the assessment and minimum criteria for reporting of identified environmental themes in terms of section 24(5)(a) and (h) of the National Environmental Management Act, 1998, when applying for environmental authorisation.
60 South African Biodiversity Institute "National Biodiversity Assessment 2018: The Status of South Africa's Ecosystems and Biodiversity" (2019) 104.
61 Sugiura "'Wise Use' in Watarase-yusuichi: Creating New Value through the Integration of Stakeholders" 2019 7 International Journal of Social Science Studies 93 93.         [ Links ]

^rND^sTurpie^rND^sSugiura^rND^1A01^nGlenwin^sSefela^rND^1A01^nGlenwin^sSefela^rND^1A01^nGlenwin^sSefela

NOTES AANTEKENINGE

 

The proposed amendment to the definition of "veldfire" as articulated by the national veld and forest fire amendment Bill [B22-2016]

 

 

1 Introduction

It goes without saying that fire is an important factor in the development of humankind. When humans first discovered fire, it instantly became their best friend. Fire enabled early humans to light up the dark, indulge in cooked meals and provide warmth for their bodies and homes. However, even before they figured out how to manually reproduce fire, it existed in nature. Fire, and specifically "veldfire", exists naturally and does not need the agency of man.

Today, severe drought (Forsyth, Le Maitre, Van den Dool, Walls, Pharoah and Fortune "The Knysna Fires 2017: Learning From the Disaster" (April 2019) https://www.polity.org.za/article/the-knysna-fires-of-2017-learning-from-this-disaster-2019-06-07 (accessed 2019-11-06) 2), specific weather conditions (for example, high temperatures, high wind speed and low rainfall combine to induce favourable veldfire conditions) and an array of other factors (such as topography, land size, fuel type, population density (human influence) and climate change) all increase the possibility of a veldfire occurring (Schulze and Schütte "Fire Danger Rating Under Natural Conditions in South Africa and Climate Change" in Schulze Handbook for Farmers, Officials and Other Stakeholders on Adaptation to Climate Change in the Agriculture Sector Within South Africa (2016) 20). Owing to these contributing factors, fire has become both friend and, in some instances, deadly foe. For example, fire is used as a friendly management tool to prevent or lower the risk of veldfire (Teie Fire Managers Handbook on Veld and Forest Fires 2ed (2009) 471), while an example of fire as foe are what are now commonly known as the "Knysna Fires" of 2017, which remain a vivid reminder of what uncontrolled fires can do. This type of fire not only damaged social, economic and environmental assets, it also quickly escalated into an emergency incident. An "incident" is defined in s 30(a) of the National Environmental Management Act 107 of 1998 to mean "an unexpected sudden occurrence, including a major emission, fire or explosion leading to serious danger to the public or potentially serious pollution of or detriment to the environment, whether immediate or delayed." (See Santam "Knysna Fires of 2017: Santam Releases Independent Disaster Report" (6 June 2019)). The Knysna Fires are a classic example of why managing veldfires in an integrated way is important within a South African context and are one of the main reasons for the promulgation of the National Veld and Forest Fire Act (101 of 1998) (NV&FFA) (s 3).

Regrettably, however, the NV&FFA defines neither "veld" nor "veldfire". Instead, it defines "fire" to "include a veldfire" and goes on inadequately to explain that "veldfire" means "veld, forest and mountain fire" (s 2(1)(xix)). With no definition in the NV&FFA to explain what a veldfire is, one of the problems it may create is the following:

"Assume a scenario where a fire spreads from a railway reserve, through a field of pasture (this qualifies as veld), then through a dry maize field, passing onto a "werf" (the ground surrounding a farmhouse), burning down the farmhouse and then spreading into an area of uncultivated land. This will be a fire that is not a veldfire (in the railway reserve), then a veldfire (in the pasture), then a fire that is not a veldfire (in the maize field and the "werf"), then a veldfire again (in the uncultivated land). Surely the Act is concerned with the fire from its start to its demise, not portions of it, depending on what it happens to be burning as it spreads. Even more ridiculously, because the fire spreading through the "werf" is not a veldfire, it could be concluded that the farmhouse was not burnt down by a veldfire." (Kidd "When is a Veldfire Not a Veldfire?" 2007 28(3) Obiter 607 612)

Taking the above reasoning into consideration, arguably one of the main challenges of the NV&FFA is the strict interpretation and inadequacy of the term "veldfire". In refreshing contrast, however, the National Veld and Forest Fire Amendment Bill (the Bill) aims to provide more meaning to the term "veldfire" by proposing the following definition:

"Any vegetation fire that occurs outside a city, town, its adjoining industrial or residential area."

The purpose of this note is therefore a critical analysis of the proposed amendment to the definition of veldfire by:

• providing legislative background to the term "veldfire";

• investigating the way the courts of the past have interpreted the term "veld" and consequently "veldfire";

• explaining why the proposal to amend the term "veldfire" is important;

• briefly looking at how other countries define their equivalent of South Africa's "veldfire"; and, lastly,

• by providing remarks and suggestions.

 

2 Legislative background of "veldfire"

During the time of the seventeenth-century European settlers, a division grew between managers of forests and those of pastoral and grazing land on the management of veldfires (Teie Fire Managers Handbook 472). This was mainly because most laws passed at that time focused on preventing veldfires occurring in forests and not necessarily on agricultural land (Teie Fire Managers Handbook 472).

The Forest and Herbage Preservation Act (18 of 1859) (the Preservation Act) was the first piece of legislation drafted with the intention to combat veldfires specifically. It was also the first in South Africa (SA) to introduce and promote the idea of conservation (Anderson and Grove (eds) Conservation in Africa (1989) 26). Importantly, however, the Preservation Act did not define "veld" or "veldfire". This Act was replaced by the Forest Act of 1888 and the Forest Act of 1984, which also provided for the prevention and combating of veldfires, but without defining "veld" or "veldfire". Various other pieces of legislation aimed at preventing and controlling veldfires have also been passed. These include: "the Soil Conservation Act of 1946 (later replaced by the Conservation of Agriculture Resources Act 43 of 1983), the Natal Act of 1895, the Mountain Catchment Areas Act 63 of 1970, the Nature Conservation Ordinance 19 of 1974, the Occupational Health and Safety Act 85 of 1993, the Fire Brigade Services Act 99 of 1987, the Atmospheric Pollution Prevention Act 45 of 1965 (since replaced by the National Environmental Management: Air Quality Act 39 of 2004) and the National Environmental Management Act 107 of 1998). However, only the Conservation of Agriculture Resources Act (43 of 1983) (CARA) defines "veld", which is discussed in more detail below.

More recently, two further Acts were passed almost simultaneously - the NV&FFA and the National Forest Act (84 of 1998) (NFA). One of the objectives of the NFA is to "promote the sustainable management and development of forests for the benefit of all" (s 1(a)). By contrast, the overall purpose of the NV&FFA is to prevent and combat veld, forest and mountain fires throughout the Republic (s 1(a)).

The NFA embraced most of the historical developments and ideas relating to preventing and combating veldfires, and most of the mechanisms put in place by the Forest Act for the preventing and combating of veldfires were incorporated into the NV&FFA. Important practices such as obliging landowners to have firebreaks were imported from the old Forest Act (122 of 1984) into the new NV&FFA. However, as already noted, there was no definition of "veldfire" in the Forest Act.

This brings us to the NV&FFA, where the definition of "veldfire" makes a debut - albeit insufficiently. As previously mentioned, the Act simply states that "fire" includes a "veldfire" (s 2(1)(vi)) and that a "veldfire" means "veld, forest and mountain fire" (s 2(1)(xix)). Strictly speaking therefore, the NV&FFA deals only with these three specific types of fire, none of which is defined in the NV&FFA. Of the three, only "forest" is specifically defined in another Act - namely, the National Forests Act (84 of 1998) (s 2(1)(x) provides that "forest" includes - (a) a natural forest, a woodland and a plantation; (b) the forest produce in it; and (c) the ecosystems which it makes up). Conceivably, the legislature at that time may have reasoned that no explanation is needed to explain the types of fire as these would be plainly understood.

Due to the lack of a definition, the South African courts were forced to provide clarity on the interpretation of the term "veld". This was done in the case of West Rand Estates v New Zealand Insurance Co Ltd (1925 AD 245), where Solomon JA held that, generally, the concept of (grass) veld is not only identified by its uncultivated and unbuilt state but also by the characteristic that it does not occur within a residential or industrial yard (West Rand Estates v New Zealand Insurance Co Ltd supra 253). Kotze JA continued by providing the perfect summary of the above reasoning:

"By veld is generally understood the uncultivated and unoccupied portion of land, as distinct from the portion which is cultivated, occupied and built upon. It is that part of open and unoccupied land over which cattle and sheep and other stock are turned for grazing purposes." (West Rand Estates v New Zealand Insurance Co Ltd supra 264)

Watermeyer J, in the case of Van Wyk v Hermanus Municipality (1963 (4) SA 285 (C)), confirmed the above interpretation and held further that, should a fire break out on a golf course, it cannot be considered a veldfire (264). This of course makes sense as a golf course is cultivated, occupied and built upon, as per the court's interpretation. Both cases were quoted in the more recent case of Gouda Boerdery BK v Transnet (2005 (5) SA 490 (SCA)), in which Scott JA agreed with the dicta of both above cases (Van Wyk v Hermanus Municipality supra and West Rand Estates v New Zealand Insurance Co Ltd supra). (For an instructive evaluation of these cases, see Kidd 2007 Obiter 609.)

At this stage, it is worth noting that the CARA Regulations (GN R1048 in GG 9238 of 1984-05-25, commencement date 1984-06-01) (the Regulations) as alluded to earlier, are the only source of a specific definition of "veld", which is defined as:

"land which is not being or has not been cultivated and on which indigenous vegetation, or other vegetation which in the opinion of the executive officer is or can be utilised as grazing for animals, occurs." (CARA Regulations, reg 1)

As referred to earlier, the above definition is couched in the same terms used by the courts in interpreting and defining "veld" and thus "veldfire". To this end, the Guide to Interpretation and Implementation of the NV&FFA (Version 3, 6 January 2005) published by the then-custodians of the NV&FFA, the Department of Agriculture, Forestry and Fisheries, states the following:

"The fires are specified as "veld, forest and mountain fires" to distinguish the scope of the Act as excluding fires in built-up areas, and we refer to them as veldfires". (The Guide to Interpretation and Implementation of the National Veld and Forest Fire Act (V 3, 6 January 2005) 10)

We can see how the courts' interpretation corresponds with this guiding document as it relates to the interpretation of the NV&FFA. Thus, technically speaking, the courts were correct in the way they interpreted veldfire at that stage. It is, however, surprising that even though the courts had in 1925 already shed light on what was considered to be "veld", at the time of writing this note, the NV&FFA has still not been amended to reflect this interpretation. This brings us squarely to the purpose of this note - to critique the proposed amendment to the definition of veldfire.

 

3 The critique

As previously stated, the Bill proposes the following definition of "veldfire":

"Any vegetation fire that occurs outside a city, town, its adjoining industrial or residential area."

As a point of departure, it is important to note that, strictly speaking, the definition of "veldfire" is not being extended. As repeatedly pointed out above, there currently is no definition in the NV&FFA, but the intention is, for the first time, to attempt to define "veldfire" more accurately and appropriately. With this in mind, this note intends to unpack the proposed definition by focussing on two of its elements.

The first is the phrase "any vegetation". "Any vegetation" would be broad enough to include grass and flower beds that are commonly found in yards of private home owners and even golf courses. This means that should you live outside a city, town, or its adjoining industrial or residential area, and your garden plants burn, this can be classified as a "veldfire", which, as discussed through the case law and the Guide to Interpretation and Implementation of the NV&FFA, was not the intention of the NV&FFA.

Further, and practically speaking, the idea of "outside" a city, town or its adjoining industrial or residential area is possibly the biggest shortfall of the proposed amendment. The term "outside" in this context is vague as it may be interpreted to mean, among others, outside the district municipal boundaries, or outside a physical boundary, such as a boundary comprising a fence, wall or any other man-made structure, or even outside a natural boundary such as a body of water or mountains. The term "boundary" should be specifically defined to articulate the geographical locations of where veldfires can occur.

As a reminder, the NV&FFA caters solely for fires that occur in veld, forest or on a mountain. In accordance with case law, these areas would not be cultivated, occupied or built on. To now include all types of fire that occur outside a city, town, or its adjoining industrial or residential area would, at the very least, call for a change to the name of the NV&FFA. This is true as, historically, "veld" was plainly understood in terms of the above case law. Today, however, this understanding would have to be rethought - given factors such as the already-mentioned urbanisation challenge, where uncultivated and unbuilt-on land becomes scarce as human population increases and expands. The probablity is that the legislature originally intended a narrower scope for the definition of "veldfire", which the cases have endorsed. Strictly speaking, the proposed amendment clashes with the purpose (s 1(1)) of the NV&FFA. As pointed out, the definition, as it currently reads, is impractical - in the sense that, and as Kidd describes it, a veldfire will be able to morph between being a veldfire and then not a veldfire, depending on where and what it burns during the same event (Kidd 2007 Obiter 612).

As far as the division and ownership of land is concerned in South Africa (SA), there can never be an "outside" a city, town, or its adjoining industrial or residential area. This is true because whenever we find an end to any municipal boundary line (for example), another is immediately identified. There is no "no-man's-land" in SA, as all land is presumably owned by someone (whether privately or by government within its various spheres) and, as such, all land is demarcated. (The Constitution of the Republic of South Africa, Act 108 of 1996, states in s 151(1) that the whole territory of the Republic must be covered by municipalities.) This demarcation essentially means that, where one boundary line ends, another immediately commences.

On the other hand, one can appreciate that government has taken steps to address the issue of crafting a definition for "veldfire", albeit with shortcomings. It is perhaps fitting at this juncture to look at how other jurisdictions have termed and defined the equivalent of "veldfire".

The Food and Agricultural Organisation of the United Nations (UN) (Fire Management: Voluntary Guidelines Fire Management Working Paper FM17E (2006) 2) uses the term "wildfire" and defines it as "any unplanned and uncontrolled wildland fire that, regardless of ignition source, may require suppression response or other action ..." (Fire Management: Voluntary Guidelines Fire Management Working Paper FM17E 59). In the same breath, "wildfire" and "wildland fire" is also adopted throughout the United States of America (USA) (https://www.nfpa.org/Public-Education/Fire-causes-and-risks/Wildfire/Firewise-USA (accessed 2019-11-10)). In other parts of the USA, the term "brushfire" is used and refers only to a fire involving low-growing plants, such as scrub and brush (https://www.latimes.com/california/story/2019-10-21/brush-fire-in-pacific-palisades-threatens-homes (accessed 2019-10-22)).

In Australia, the Rural Fires Act 1997 No 95 uses the term "bushfire" and defines it to include "grass fire" (Rural Fires Act s 4, read with the Act's Dictionary found at the end of the Act).

Canada also refers to the term "wildfire" but defines it differently as: "An unplanned or unwanted natural or human caused fire, as contrasted with a prescribed fire" ("CIFFC Canadian Wildland Fire Management Glossary" Canadian Interagency Forest Fire Centre (2017) 31).

Among these various terms or phrases used, along with their respective meanings, it is the UN's definition of "wildfire" that is the more forward thinking in its alluding to specific elements within the definition. The first of these elements is the phrase "uncontrolled wildland fire". This is particularly important as not all "veldfires" are regarded as uncontrolled. The second is "may require suppression". This is important as not all "veldfires" may need to be extinguished. The author is therefore in agreement with Kidd when he argues that not only should the definition of "veldfire" be reconsidered but should, at the very least, include these two elements (Kidd 2007 Obiter 613).

 

4 Closing remarks and proposed definition

Amending legislation with the aim of making it more relevant and practically implementable should always be at the forefront of national, provincial and municipal planning. Even though the definition can be seen as flawed, it is a step in the right direction. The discussion on the different definitions illustrate that it is important and helpful to have a definition regardless of whether the term used be "veldfire", "wildfire" or something else. In the case of the USA and Canada, both jurisdictions use the term "wildfire", but each with different connotations. Journalists throughout the developing and developed world commonly refer to "wildfire" when describing a fire consuming vegetation and or structures on a large scale (examples of these include the already-mentioned reporting on the Knysna fires, the fires occurring in the rainforest (affecting Brazil, Peru, Bolivia, Paraguay), and in California in the USA, Lebanon, Alaska, Siberia, Greece, Spain, France and Russia).

As the proposed amendment to the definition currently reads, it remains unhelpful and impractical. Should the proposed amendment become law, the first hurdle to overcome would be to determine where, in terms of geographical location, a veldfire can occur in SA, if at all. By borrowing some concepts from the definitions discussed, perhaps the definition of "veldfire" could be more accurately reworked as:

"Any vegetation fire that may require suppression or other action and which occurs outside a residential or industrial plot where there is a potential threat to human life, environmental harm or damage to property."

 

Glenwin Sefela

Nelson Mandela University

^rND^1A01^nReghard^sBrits^rND^1A01^nReghard^sBrits^rND^1A01^nReghard^sBrits

CASES VONNISSE

 

Parate execute clause in mortgage bond versus post-default authority to sell

 

 

Business Partners Limited v Mahamba (4568/2016) [2019] ZAECGHC 17 (26 February 2019)

 

1 Introduction

The purpose of this note is to consider a case that came before a full bench of the Eastern Cape Division of the High Court in Grahamstown - namely, Business Partners Limited v Mahamba ((4568/2016) [2019] ZAECGHC 17 (26 February 2019)). The case touched on the age-old debate surrounding the validity of parate executie (summary execution or private sale) clauses in agreements that hypothecate property as security for the payment of a debt. Even though such clauses are popular in pledge agreements pertaining to movable property (including the hypothecation of incorporeal movables via a cession in securitatem debiti), this case involved a mortgage bond pertaining to immovable property. Moreover, as explained below, the impugned clause in casu technically was not a parate executie clause but an agreement entered into after the debtor defaulted on a loan.

A parate executie clause generally seeks to entitle the secured creditor to dispose of the hypothecated property through a private sale - that is, without going through the normal court processes - when the debtor defaults on payment obligations under the loan agreement. The validity of parate executie clauses has been debated since at least Roman-Dutch times (see Krause "The History of Parate Executie" 1924 41 SALJ 20), while the debate has also featured in modern South African case law and literature. More recently a constitutional dimension has been added to (and has revived) the controversy by virtue of the right of access to courts guaranteed in section 34 of the Constitution of the Republic of South Africa, 1996 (the Constitution). There is also a significant difference depending on whether a pledge of movable or a mortgage of immovable property is involved. It is moreover necessary to distinguish between parate executie clauses included in the bond itself and agreements subsequent to a debtor's default in terms of which a debtor authorised a creditor to sell the property without having to go through the court processes.

In view of the judgment in Business Partners v Mahamba (supra), it is arguably necessary to revisit the matter and to clarify some aspects surrounding parate executie clauses, such as the circumstances under which they are valid and invalid as well as how they differ from similar contractual arrangements between debtors and creditors. It is also necessary to affirm the difference in this regard between pledges of movable and mortgages of immovable property. The article also comments on the implications, in the residential mortgage foreclosure context, of the difference between parate executie clauses in mortgage agreements, on the one hand, and post-default agreements allowing a creditor to sell the property privately, on the other.

 

2 Business Partners v Mahamba

2 1 Facts

The case concerned a credit relationship between a close corporation (Alizw'amaHlubi Multi Skilling Centre CC) and a financier (Business Partners Limited). The sole member of the CC (Mahamba) concluded certain loan agreements on behalf of the CC with Business Partners. The latter as financier required of Mahamba to bind herself as surety for the debt and to register a surety bond over her immovable property as security for repayment of the loan granted to the CC as principal debtor (Business Partners v Mahamba supra par 1-4).

When the CC defaulted on its payment obligations to Business Partners, the latter sought payment from Mahamba as surety, as well as an order declaring her property executable as provided for in the surety bond (Business Partners v Mahamba supra par 7). After summons was issued and served on Mahamba, she and Business Partners engaged in settlement talks, which resulted in a so-called "agreement to pay debt" (Business Partners v Mahamba supra par 9). The salient portions of the settlement agreement for present purposes were clauses 3.2 and 3.3.

In clause 3.2, the surety authorised the creditor "to dispose of the property by private treaty or in such other manner as it deems fit". Clause 3.3 went on to determine that the creditor would only embark on such a private sale if the principal debtor and/or the surety breached the terms of the settlement agreement. In such a case, the creditor would "be entitled to proceed with the marketing and sale of the property without further notice to the principal debtor and/or surety" (Business Partners v Mahamba supra par 12).

In addition to this settlement agreement, Mahamba signed a power of attorney in terms of which she authorised the creditor "to sell by private treaty or in any manner at such price and on such terms and conditions as it may in its sole discretion determine and to sign the deed of sale and at all such other documents as may be required to give effect to registration of transfer of (the property)" (Business Partners v Mahamba supra par 15).

Subsequently both the CC as principal debtor and Mahamba as surety failed to comply with the settlement agreement in that no payment was effected as required. On the basis of the abovementioned power of attorney, the creditor responded by mandating an auctioneering firm to sell the property, after which the property was indeed sold (Business Partners v Mahamba supra par 16). After the sale, Mahamba approached the court a quo for an order declaring the sale unlawful and for an interdict restraining the transfer of ownership to the purchaser (Business Partners v Mahamba supra par 17). She contended that the sale was not preceded by due process of law because no fresh summons was issued and no order was obtained declaring the property executable (Business Partners v Mahamba supra par 18).

The creditor objected to this argument because, as the judge put it, Mahamba "had freely and voluntarily registered a bond over the property in favour of [Business Partners] and signed a power of attorney authorising [Business Partners], in its discretion, to sell the property by private treaty in the event of the principal debtor and [Mahamba] failing to discharge their indebtedness towards [Business Partners]" (Business Partners v Mahamba supra par 19).

It should be noted that one must approach this argument (or at least the way the court put it) with care. It creates the impression that the creditor relied on a clause in the mortgage bond itself, which is not the case. Instead, the power of attorney was signed separately, after the debtor had defaulted on the terms of the mortgage loan. This distinction is important because, as explained below, a parate executie clause is invalid if included in a mortgage agreement pertaining to land, while it is valid for a debtor to agree, after defaulting on a loan, to allow a creditor to sell the property.

2 2 Judgment of the court a quo

The crux of the judgment of the court a quo was summarised by the full bench (Business Partners v Mahamba supra par 20). The court a quo agreed with Mahamba's contention and thus declared the sale unlawful on the basis that it was not preceded by due process of law. The court a quo regarded this as an unacceptable form of self-help because it supposedly permitted the creditor to take the law into its own hands by circumventing the courts. For this conclusion, the court a quo relied on the Constitutional Court case of Chief Lesapo v North West Agricultural Bank (2000 (1) SA 409 (CC)).

2 3 Judgment of the full bench

On appeal, the full bench regarded the judgment of the court a quo as "clearly incorrect" (Business Partners v Mahamba supra par 21). With reference to the facts, the court explained that Mahamba had an opportunity to seek the court's protection when the original summons was issued seeking to have her property declared executable (Business Partners v Mahamba supra par 24) but that she chose an out-of-court settlement in terms of which she voluntarily authorised the creditor to sell the property if she could not fulfil the settlement agreement. The court effectively upheld the validity of the agreement on the basis that it is supported by the principle pacta sunt servanda (Business Partners v Mahamba supra par 25).

The court went on to confirm "for the sake of completeness" that "it is trite that a parate executie, which authorises execution without an order of court, is valid, provided it does not prejudice, or is unlikely to prejudice, the rights of the debtor unduly" and that "a parate executie is not per se unconstitutional or offensive to public policy" (Business Partners v Mahamba supra par 27, citing Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) 14D-F; Eastwood v Shepstone 1902 TS 294 302; SA Bank of Athens Ltd v Van Zyl 2005 (5) SA 93 (SCA)).

The court also distinguished between the case under discussion and the judgment in Chief Lesapo v North West Agricultural Bank (supra). The latter case concerned a statutory provision that authorised the Northwest Agricultural Bank to seize and sell certain property without court authorisation. It was declared unconstitutional for unjustifiably violating the debtor's right of access to court (s 34 of the Constitution). The case under discussion was different because the debtor voluntarily waived her right of access to court and voluntarily authorised the creditor to sell the property privately. In this regard, the court confirmed that it was lawful for the debtor, after default, to agree to allow the creditor to sell the property (Business Partners v Mahamba supra par 28, citing Bock v Duburoro Investments (Pty) Ltd 2004 (2) SA 242 (SCA) par 7; Juglal NO v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division 2004 (5) SA 248 (SCA) par 25; Iscor Housing Utility Co v Chief Registrar of Deeds 1971 (1) SA 613 (T) 616).

 

3 Validity of parate executie clauses as compared to similar arrangements

The judgment of the full bench is relatively straightforward, and the outcome cannot be faulted in general. However, a number of aspects should be clarified. This will be done with reference to some background information regarding the validity of summary execution clauses as well as other comparable contractual stipulations in the context of mortgage and pledge agreements (in general, see also Brits Real Security Law (2016) 64-65 and 162-180; LAWSA XVII Mortgage and Pledge par 366 and 427; Muller, Brits, Pienaar and Boggenpoel Silberberg and Schoeman's The Law of Property 6ed (2019) 443-444 and 460-461; Kritzinger Principles of the Law of Mortgage, Pledge & Lien (1999) 22-23; Van der Merwe Sakereg 3ed (1989) 627-628 and 658-660).

The default position in any instance of debt enforcement is that the creditor must make use of the formal court processes to enforce its rights, by obtaining a judgment order as well as permission to have the relevant assets attached and sold in execution. It is trite that a creditor may not take the law into its own hands by seizing and selling property without following the proper procedures. However, attempts have been made over the years to devise contractual clauses in terms of which the debtor supposedly authorises the creditor to bypass the court processes. Some of these have been recognised, while others have been rejected.

The first example is a so-called pactum commissorium (or forfeiture clause) that purports to allow the creditor to "keep" (or become owner of) the pledged or mortgaged property if the debtor defaults on the loan - and this despite the size of the outstanding debt or the value of the asset. Such clauses have been outlawed since Roman times owing to the high risk of abuse (C 8.34(35).3) - namely, that desperate credit seekers might easily agree to such a draconian provision in order to obtain financing (see also Voet 20.1.25). Modern South African case law confirms the invalidity of such clauses in mortgage and pledge agreements (see Mapenduka v Ashington 1919 AD 343 351-352; Graf v Buechel 2003 (4) SA 378 (SCA) par 9-11; Bock v Duburoro supra par 8; Citibank NA v Thandroyen Fruit Wholesalers CC 2007 (6) SA 110 (SCA) par 13).

A clause that appears similar to a pactum commissorium is one that provides for a so-called quasi-conditional sale. In terms of this arrangement, which has also been recognised since Roman times (D 20.1.16), if the debtor defaults, the creditor is permitted to invoke the clause in order to purchase the property from the debtor at a fair value determined after default. In effect, the creditor acquires the property while the fair value of the asset is set off against the outstanding debt and any surplus is returned to the debtor. Such clauses are less susceptible to abuse, and thus are recognised as valid in both mortgage and pledge agreements in South Africa. (See Mapenduka v Ashington supra 352-353 for a good explanation of the difference between quasi-conditional sales and pacta commissoria. For further authority that a clause permitting a quasi-conditional sale is valid in South Africa, see Sun Life Assurance Co of Canada v Kuranda 1924 AD 20 24-25; Graf v Buechel supra par 27-31; Bock v Duburoro supra par 9.)

The third example of attempts to bypass court processes is the most controversial - namely, the clause permitting parate executie, an immediate or private sale by the creditor without court authorisation. The locus classicus on parate executie in South Africa is Osry v Hirsch, Loubser & Co Ltd (1922 CPD 531). The court investigated the different opinions expressed by the Roman-Dutch authors as well as conflicting earlier court judgments. It concluded that a parate executie clause is valid in an agreement where movables are delivered in pledge to a creditor but that the debtor can seek the court's protection if the creditor acts in a way that prejudices his rights (Osry v Hirsch supra 547). This approach was confirmed and followed without much controversy during the decades that followed (see Paruk v Glendale Estate Co (1924) 45 NPD 1 4; Mercantile Bank of India Ltd v Davis 1947 (2) SA 723 (C) 736-737; Aitken v Miller 1951 (1) SA 153 (SR) 154-155; SAPDC (Trading) Ltd v Immelman 1989 (3) SA 506 (W) 508-509 and 511; Sakala v Wamambo 1991 (4) SA 144 (ZH) 147; Candid Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd 1992 (2) SA 459 (C) 463).

However, at the turn of the new millennium, the constitutional validity of these clauses was placed in doubt in Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd (2001 (1) SA 251 (E) 256). Prior to this case, the Constitutional Court had delivered two judgments in which it declared unconstitutional certain statutory provisions that permitted the seizure and sale of a debtor's property without court authorisation (see Chief Lesapo v North West Agricultural Bank supra and First National Bank of South Africa Ltd v Land and Agricultural Bank of South Africa; Sheard v Land and Agricultural Bank of South African 2000 (3) SA 626 (CC)). The reason for the constitutional invalidity was that the statutory provisions in question unjustifiably denied the debtors their right of access to court. The judge in Findevco v Faceformat (supra) relied on these judgments to reason that, basically, a contractual clause cannot permit a sale without court authorisation either. For reasons that need not be expanded upon here, the reasoning in Findevco v Faceformat (supra) was criticised convincingly by Scott "Summary Execution Clauses in Pledge and Perfecting Clauses in Notarial Bonds: Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd 2001 (1) SA 251 (E)" 2002 65 THRHR 656.

The Supreme Court of Appeal in Bock v Duburoro (supra par 7 and 13) subsequently clarified the situation by reaffirming the authority of Osry v Hirsch (supra) and thus confirmed the validity of parate executie clauses in pledge contracts pertaining to movable property (see also Juglal v Shoprite supra par 11; SA Bank of Athens v Van Zyl supra par 10-16; and see further Steyn "Perfection Causes, Summary Execution (Parate Executie) Clauses, Forfeiture Clauses (Pacta Commissoria) and Conditional Sales in Pledge Agreements and Notarial Bonds: The Position Clarified" 2004 25 Obiter 443).

It can be noted that there remains some debate in academic circles surrounding the constitutional implications of parate executie clauses (see Cook and Quixley "Parate Executie Clauses: Is the Debate Dead?" 2004 121 SALJ 719; Scott "A Private-Law Dinosaur's Evaluation of Summary Execution Clauses in Light of the Constitution" 2007 70 THRHR 289) and it also appears that such clauses are not lawful when included in most credit agreements that fall under the scope of the National Credit Act 34 of 2005 (see Brits "Pledge of Movables Under the National Credit Act: Secured Loans, Pawn Transactions and Summary Execution Clauses" 2013 25 SA Merc LJ 555).

For the sake of completeness, reference should briefly be made to so-called perfection clauses typically included in general notarial bonds - also because the court in Findevco v Faceformat (supra 256) appears to have conflated such clauses with parate executie clauses (see Bock v Duburoro supra par 15; Scott 2002 THRHR 656 and 659-660). A perfection clause in a general notarial bond authorises the creditor (bondholder) to demand delivery of the bonded movables when certain conditions are met (typically when the debtor defaults). Should the debtor refuse to deliver the assets to the creditor voluntarily, the creditor can enforce this duty by applying to court for an order perfecting the bond, which essentially amounts to an order for specific performance of the duty to deliver the property. When a court grants the application (in the form of an attachment order) and the movables are subsequently attached by the sheriff, the creditor's security is "perfected", thus placing the creditor in the position of a pledgee (a secured creditor) for all intents and purposes (see generally Firstrand Bank Ltd v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA) par 4; Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd 2003 (2) SA 253 (SCA) par 3-6; Development Bank of Southern Africa Ltd v Van Rensburg 2002 (5) SA 425 (SCA) par 20).

Importantly for present purposes, a perfection clause in a general bond cannot logically be equated with a parate executie clause and it cannot be viewed as permitting the creditor to take the law into its own hands (self-help). The patent reason for this is that the creditor would require a court order to obtain possession of the property and thus there is no room for self-help (see Scott 2002 THRHR 659-660; and on the perfection of general notarial bonds in general, see further Brits Real Security 212-227; Roos "The Perfecting of Securities Held Under a General Notarial Bond" 1995 112 SALJ 169).

Returning to parate executie clauses, it must be said that although the above discussion regarding the validity of parate executie clauses represents the general position, it is mostly focused on contracts whereby movables are pledged. Therefore, the next question is whether the position is the same for mortgage bonds pertaining to immovable property, also because the case under discussion involved a mortgage of land, not a pledge of movables (see also generally Schulze "Parate Executie, Pacta Commissoria, Banks and Mortgage Bonds" 2004 26 De Jure 256).

The leading case on parate executie clauses in mortgage bonds over immovable property is Iscor Housing v Chief Registrar (supra). Prior to this judgment, there was a degree of uncertainty whether the position set out in Osry v Hirsch (supra) with reference to the validity of parate executie clauses in pledges of movable property also applied to mortgage bonds over immovable property (see Paruk v Glendale supra; Executors Testamentary of The Estate of DJ Van Wyk v CJ Joubert (1897) 4 Off Rep 360; Insolvent Estate of WC Evans and AA Evans v South African Breweries Ltd (1901) 22 NLR 115; John v Trimble 1902 TH 146; and also Anonymous "Clause in Mortgage Bond Allowing Mortgagee to Sell in Case of Non-Payment of Debt" 1910 27 SALJ 527).

The court in Iscor Housing v Chief Registrar (supra) found that the general rule did not apply to immovable property and thus that parate executie clauses are unenforceable when included in mortgage bonds pertaining to land. The main reasoning was that neither case law nor the preponderance of common-law authorities extended the validity of such clauses to agreements involving land. Nevertheless, the court stressed that, despite a prohibition against agreeing to a private sale when the bond is passed, it is possible to agree to a private sale if the debtor subsequently defaults on the loan (Iscor Housing v Chief Registrar supra 616). Effectively, therefore, the latter circumstance is not caught in the general prohibition against parate executie clauses in mortgage agreements (for a discussion of Iscor Housing v Chief Registrar supra, see Isakow "Parate Executie" 1971 88 SALJ 310).

After being followed in other high court judgments (see Mardin Agency (Pty) Ltd v Rand Townships Registrar 1978 (3) SA 947 (W) 952-954; Tenner v Leeufontein Mines (Pty) Ltd 1982 (4) SA 586 (T) 588-589), the decision in Iscor Housing v Chief Registrar (supra) was also confirmed by the Supreme Court of Appeal in Bock v Duburoro (supra par 7) (see also Citibank NA v Thandroyen supra par 13). In Bock v Duburoro (supra), the Supreme Court of Appeal regarded the invalidity of parate executie clauses in mortgage agreements as trite while also confirming that it is permissible for the debtor, after default, to authorise the creditor to sell the property privately (citing Iscor Housing v Chief Registrar supra with approval; see also Israel v Solomon 1910 TPD 1183 1186-1187; In re Cradock Building Society (1896) 13 SC 99).

In view of the above, it is necessary to qualify the statement in Business Partners v Mahamba (supra par 27) confirming the general validity of parate executie clauses without drawing a distinction between movable and immovable property. The authority is clear that parate executie clauses are valid only in pledge agreements involving movable property and not in mortgage bonds over immovable property. However, in both instances it is possible to conclude a post-default agreement authorising the creditor to sell the property privately.

A question that might require some reflection is why a distinction is made between movable and immovable property when it comes to the validity of parate executie clauses. The court in Iscor Housing v Chief Registrar (supra) did not provide a detailed principled analysis, except to point out that the implications of a wrongful or mistaken private sale (for instance, if the property was sold in terms of the parate executie clause without the debtor's knowledge while the latter actually had a valid defence against the creditor's claim) are significantly more serious and more complex to overturn in the case of immovable property than with movable goods (Iscor Housing v Chief Registrar supra 617). Although true, one could regard this reasoning as an over-generalisation that does not take account of high-value movables or of the reality that a mistaken private sale of movables could have similar (or even worse) consequences than a mistaken private sale of immovable property.

A stronger reason might be that, in the context of a pledge agreement, the creditor already has lawful possession of the property and thus a parate executie would only involve the private sale of the property, and not any private means to dispossess the debtor. On the other hand, with mortgage bonds, the creditor is typically not in possession of the property and thus a private sale would, at best, involve selling the property "out from under" the debtor while he still occupies it or, at worst, involve a private eviction of some kind. Therefore, a pledgee creditor does not have to use self-help to obtain possession of the movable before selling it, while such dispossession would indeed be necessary in the case of immovable property. Put differently, the theory is that parate executie clauses in pledge agreements do not permit unacceptable self-help, while such clauses in mortgage agreements, by implication, do (see also Scott 2002 THRHR 661 with reference to Iscor Housing v Chief Registrar supra 541).

It is important to note that, even though the court in Business Partners v Mahamba (supra) discussed the validity of parate executie clauses, the facts of the case did not truly involve a parate executie clause. Indeed, no such clause appeared in the mortgage bond in question. Instead, after the debtor had defaulted on the original agreement, the parties agreed in a separate agreement that the creditor could sell the property privately if the debtor breached obligations in the separate agreement. If there had been a parate executie clause in the mortgage bond itself, that would have been invalid because, as established above, such clauses are not permitted in mortgage agreements pertaining to land. However, it is clear that the parties may agree to a private sale after the debtor has defaulted on the loan, which is what happened in this case.

 

4 Parate executie versus post-default authority to sell in the residential foreclosure context

Post-default agreements allowing the private sale of mortgaged property are not novel in South Africa, but they have recently taken on a new dimension in the context of residential property. Without going into detail, it is well known that the procedure for foreclosing mortgage bonds and having residential property sold in execution has become more strenuous in order to protect homeowners from the unjustified limitation of their right to have access to adequate housing and the right not to be arbitrarily evicted from their home (s 26(1) and (3) of the Constitution respectively). The leading cases on this issue are Jaftha v Schoeman; Van Rooyen v Stoltz (2005 (2) SA 140 (CC)) and Gundwana v Steko Development (2011 (3) SA 608 (CC)), with many others having dealt with this topic as well. Moreover, High Court Rule 46(1)(a)(ii) was amended in 2010 to require a court, before authorising such a sale, to consider all the relevant circumstances of the case, while a more expansive amendment of the rules came into force in 2018 with the introduction of the new High Court Rule 46A and the new Magistrates' Courts Rule 43A (see GN R1272 in GG 41257 of 2017-11-17; for more detail on residential foreclosure topic generally, see Brits Real Security 68-100 and the other sources cited there).

The immovable property in Business Partners v Mahamba (supra) was residential in nature and was indeed Mahamba's primary residence (home). The court also mentioned that when summons was served on Mahamba in order to commence enforcement of the surety bond, she was informed of her rights under section 26 of the Constitution (the housing clause) and invited to present information to the court regarding the possible infringement of her rights in this regard (thus complying with the practice directive issued by the Supreme Court of Appeal in Standard Bank of South Africa Ltd v Saunderson 2006 (2) SA 264 (SCA) par 25-27; see Business Partners v Mahamba supra par 8). There is no indication that Mahamba made use of this opportunity and thus this factor had no impact on the matter.

One key development in mortgage foreclosure law in recent years is that a sale in execution of a home should, in accordance with the proportionality test, generally only be permitted if there is no other reasonable way to satisfy the creditor's rights - that is, if the forced sale of the home is the last resort (see Jaftha v Schoeman supra par 40 and 59; Gundwana v Steko supra par 53; High Court Rule 46A(2)(a)(ii)). One alternative to sale in execution could be that the house is put up for sale on the private market - for instance, in terms of an agreement between the debtor and creditor whereby the debtor authorises the creditor to sell the property on his behalf.

This option (which most banks provide as an alternative to foreclosure these days) is beneficial for other reasons as well. First, no judgment is taken against the debtor, which has positive implications for his or her creditworthiness and avoids negative information being recorded at a credit bureau. Secondly, the property is likely to be sold at a more favourable price than would be the case with a sale in execution at a public auction. This increases the chances that there might be a surplus for the benefit of the debtor. Thirdly, legal costs are kept much lower than would be the case if the creditor had to go through normal enforcement processes, which also increases the chances (and size) of a surplus after the sale. Finally, losing one's home through a controlled private sale is undoubtedly more dignified than going through a potentially traumatic public enforcement, execution and eviction process (see s 10 of the Constitution: "Everyone has inherent dignity and the right to have their dignity respected and protected").

The judgment does not say so expressly, but these might be some of the reasons that Mahamba granted the bank authority to sell her home instead of going ahead with the normal enforcement process. Indeed, the service of summons on Mahamba probably inspired her acceptance of the settlement agreement that authorised the bank to sell the property on her behalf on the private market, being preferable to formally defending the matter in court. In any event, having regard to the benefits listed above (and there might be others), it is commendable that the court in Business Partners v Mahamba (supra) reaffirmed the validity of entering into such post-default agreements. A caveat might be that it is important to ensure that a summons (and thus the threat of legal action) does not unduly induce a debtor to agree to prejudicial terms in a settlement agreement. It should also be remembered that, when the creditor sells the property on the debtor's behalf, it does so as her representative (agent) and accordingly the creditor is subject to all the duties and limitations of an agent in terms of the common law of agency (Sakala v Wamambo supra 148).

At the same time, while the law continues to sanction post-default agreements authorising the bank to sell the property without court oversight, it probably remains necessary to outlaw the inclusion of a parate executie clause in the mortgage bond itself (that is, when the loan is granted and the mortgage passed). Agreeing to a private sale after default means that the debtor does so with full knowledge of his or her position and presumably under circumstances where the debtor does not believe that he or she requires the protection provided by the judicial process, or that it is otherwise worthwhile to defend the matter in court.

This is not the case when the debtor agrees to a private sale, years in advance, via a parate executie clause in the mortgage bond. If parate executie clauses were permissible in mortgage bonds, this would create an opportunity for creditors to bypass the protection that judicial oversight is meant to provide, particularly in the context of residential mortgage foreclosure. The debtor in such a case would have agreed to parate executie when the loan was granted - well before default, and thus before the need for judicial oversight arose. The clause would have the result that, when the debtor defaults, he or she would have to submit to the private sale and thus forfeit the protection afforded by the normal process. This would be problematic if the debtor would have liked to place information pertaining to his or her housing rights before a court if granted an opportunity to defend the creditor's application for a judgment and execution order. A parate executie clause (included in the bond itself, not agreed to post default) means that the debtor would forfeit this opportunity to defend the creditor's foreclosure application, and instead would have to approach the court for protection against prejudice as contemplated in Osry v Hirsch (supra). It can be noted that the debtor in casu did not provide information regarding any prejudice that she suffered or would suffer if the creditor were to continue with the private sale. She merely challenged the inherent validity of the agreement and power of attorney in question, alleging that these amounted to a prohibited parate executie clause, which clearly was not the case.

The point is that the application of the constitutional-right-to-housing clause in the mortgage foreclosure context provides support for the continued prohibition against parate executie clauses in mortgage bonds. In Gundwana v Steko (supra par 44 and 47-48), the Constitutional Court explained that the voluntary registration of a mortgage bond does not mean that the debtor waives his or her protection, or that it ousts the court's responsibilities, under the housing clause. The same reasoning supports the notion that no clause in a bond (including one for parate executie) can be used to bypass the requirement of judicial oversight when a home is sought to be sold to settle a mortgage debt. At the same time, inasmuch as the housing clause buttresses the prohibition against parate executie clauses in mortgage agreements, it also supports the rule that permits the post-default granting of a power to sell the property. The reason for this is that, under circumstances where the debtor does not have a strong defence against the creditor's foreclosure application (and thus the sale in execution appears inevitable), the debtor can choose to authorise a private sale by the creditor, which may be less prejudicial to his or her rights - both financially and with reference to his or her dignity.

 

5 Conclusion

Contractual clauses designed to enable a creditor to bypass court processes have been and probably will remain controversial. A fine balance must be struck between the benefits and risks associated with legal constructs that allow the sidestepping of judicial procedures that are otherwise required. Freedom of contract must also be weighed against the policy that no one should be permitted to take the law into his or her own hands (self-help). Regarding mortgage bonds registered over immovable property, the current position remains that both pacta commissoria and parate executie clauses are invalid when included in the mortgage bond. However, a quasi-conditional sale agreement is permissible, even if included in the bond, provided that the creditor takes over the property at fair value determined after default. Furthermore, a post-default agreement in terms of which the creditor is authorised to sell the property without court oversight is valid and, as pointed out above, could be beneficial also for the debtor. Yet, if history is anything to go by, this conclusion is probably not the last word on the matter.

 

Reghard Brits

Department of Mercantile Law, University of Pretoria

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CASES VONNISSE

 

Biowatch shield, costs liability for abuse of process and crossfire litigation

 

 

Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC)

 

1 Introduction

While costs are traditionally dealt with at the tail end of proceedings and invariably in the concluding segment of a court's judgment, they nevertheless continue to be consequential. This is especially so in respect of how access to constitutional justice is pursued and levered. The outlines of the progressive costs awards jurisprudence in constitutional and public interest litigation are encapsulated in Biowatch Trust v Registrar Genetic Resources (2009 (6) SA 232 (CC) (Biowatch); see also Ferreira v Levin NO 1996 (2) SA (CC), Afordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC)). Biowatch established the general proposition that in litigation between the State and private parties seeking to assert a fundamental right, the State should ordinarily pay costs if it loses. The Biowatch shield seeks to mitigate the "chilling effects" cost orders could have on parties seeking to assert their constitutional rights - even where unsuccessful. The threat of hefty costs orders may chill constitutional assertiveness. It may deter parties from challenging questionable practices of the State (Motsepe v CIR 1997 (2) SA 898 (CC) par 30; Affordable Medicines Trust v Minister of Health supra par 138). This is particularly so in a society characterised by disparities in resources and inequality of opportunities. The vindication of fundamental rights is inseparably linked to the transformative process the Constitution envisages. It is now established that the general rule in constitutional litigation is that an unsuccessful litigant in proceedings against the State ought not to be ordered to pay costs. On the other hand, the Biowatch principle also permits exceptions and does not go so far as to immunise all constitutional litigation from the risk of an adverse costs order. A worthy cause or worthy motive cannot immunise a litigant from an adverse costs order for abuse of process or engaging in frivolous or vexatious proceedings.

The article addresses the application of the Biowatch principle in respect of cost orders where a public interest litigant has conducted the proceedings in an abusive, vexatious or frivolous manner, as well as in crossfire litigation. The first-tier question that arises is: can a court impose adverse costs awards on a constitutional litigant where a suit is unmeritorious or there is impropriety in the manner in which the litigation has been undertaken? There is also the delicate issue of costs awards in crossfire disputes. In pith and substance, crossfire disputes involve litigation between a private party and the State, provoked by the latter's failure to perform its regulatory role but adversely affecting the interests of other private parties. In effect, the knotty question is: can adverse costs orders be made against interveners or parties who become involved in proceedings?

 

2 The problem of abuse of process, frivolous or vexatious litigation

The questions arising from abuse of process (Beinash v Wixley 1997 (3) SA 721 (SCA) 34F-G) and frivolous or vexatious litigation (Bisset v Boland Bank Ltd 1991 (4) SA 603 (D) 608D; Lawyers for Human Rights (LHR) v Minister in the Presidency 2017 (1) SA 645 (CC) par 19; see also s 2(1)(0) of the Vexatious Proceedings Act 3 of 1956) are as inherently murky as malicious prosecution (Okpaluba "Proof of Malice in the Law of Malicious Prosecution: A Contextual Analysis of Commonwealth Decisions" 2012 37(2) JJS 65; Okpaluba "Reasonable and Probable Cause in the Law of Malicious Prosecution: A Review of South African and Commonwealth Decisions" 2013 16(1) PER/PELJ 241; Okpaluba "'Prosecution' in an Action for Malicious Prosecution: A Discussion of Recent Commonwealth Case Law" 2013 13 TSAR 236; Okpaluba "Quantification of Damages for Malicious Prosecution: A Comparative Analysis of Recent South African and

Commonwealth Case Law (1) (2018) 31(2) SACJ 235, (2) (2018) 31(3) SACJ 410 and (3) (2019) 32(1) SACJ 28). The manner in which a suit is conducted is relevant to the question whether a litigant will be shielded from an adverse costs award and its relevance to constitutional litigation is borne out by the fact that the general approach to costs in proceedings between parties and the State is not unqualified (see Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) par 36). Sympathy for the public interest litigant, by itself, will not relieve the party from the normal obligation to pay costs if the application is frivolous or vexatious or is in any other way manifestly unmeritorious. That could encompass the unusual censure of granting a punitive costs order against a constitutional litigant. Adverse costs awards have been granted against a party whose proceedings are stayed or dismissed on the grounds of being vexatious or frivolous. (In Minister of Health v New Clicks SA (Pty) Ltd 2006 (2) SA 311 (CC) par 82, the Constitutional Court ordered the State to pay the full costs in respect of the SCA proceedings where the State refused to argue the terms of appeal before that court. Chaskalson CJ expressed disapproval of the stance adopted. He commented as follows: "[C]ourts are entitled to expect assistance and not obstruction from litigants in the discharge of their difficult duties. What happened in the present case not only failed to meet the requirement, but also evinced a deplorable lack of respect for the Supreme Court of Appeal.") Similarly, punitive costs orders have been made against litigants who during the course of the proceedings acted constitutionally inappropriately. (In Gauteng Gambling Board v MEC for Economic Development 2013 (5) SA 24 (SCA), the SCA expressed its disapproval for the cavalier conduct of the MEC by mulcting her with special costs - namely, on the attorney-and-client scale. The MEC had employed her statutory powers for an ulterior purpose - namely, to compel compliance with her instruction to accommodate another party. The MEC's conduct following the launching of the application for interdictory relief - in particular her dismissal of the Board and the subsequent appointment of an administrator while the appeal was pending - merit censure).

While courts are ordinarily loath to grant a punitive costs order in constitutional litigation (Moutshe Demarcation Forum v President of the RSA 2011 (11) BCLR 1158 (CC) par 84), in exceptional circumstances, they will not hesitate to do so against a public interest litigant where proceedings have been conducted in an abusive, vexatious or frivolous manner. Such "exceptional circumstances" justifying an adverse costs order were found to exist in Afri-Forum v Malema (2011 (12) BCLR 1289 (EqC)). The respondent, a prominent political figure, failed to comply with the directions of the court, and persisted in singing a song knowing the impact it would have on the target group (Afri-Forum v Malema supra par 116). The hate speech litigation had its origin in the repeated conduct of Malema whose words in translation drew the target group's attention to the song. The Equality Court found that the respondent's moral culpability when measured in this fashion warranted an appropriate costs order against him (Afri-Forum v Malema supra par 117). Inasmuch as the ANC was misguided in trying to protect the singing of the song, the court found that it was entitled to express the views of its constituencies (Afri-Forum v Malema supra par 114). Because the ANC was not culpable in participating in the proceedings, it was not mulcted with costs.

Another example of an adverse costs order is found in Kalil NO v Mangaung Municipality (2014 (5) SA 123 (SCA)). In this case, the appellants unsuccessfully resisted the imposition of higher rates on business properties by the municipality. Relying on SA Property Owners Association v Johannesburg Metropolitan Municipality (2013 (1) SA 420 (SCA)), the appellants argued that the required community participation did not take place, a point that the respondent conceded on appeal. Although the appellant did not prevail on the community participation issue, punitive costs were granted against the municipality because of the obstructionist conduct of its officials.

In Helen Suzman Foundation (HSF) v President of the RSA; Glenister v President of the RSA (2015 (2) SA 1 (CC)), the Constitutional Court was faced with a situation in which each party had landed some good punches during rounds of High Court and appellate litigation, but neither party had scored a knockout. In the High Court, Glenister's application was dismissed. In line with the Minister's application, the High Court also struck out the additional evidence on which his case was predicated. Nonetheless, HSF achieved partial success in that some of the impugned sections were found to be constitutionally invalid, whereas several others were not. HSF was awarded costs. Despite aligning himself with a prevailing party, a punitive costs order was made against Glenister in respect of the successful striking-out application.

One of the issues that fell to be decided by the Constitutional Court in HSF v President of the RSA was the consequential punitive costs order made against Glenister and the failure to award him costs for the successful HSF application. With respect to the conduct of the litigation before the High Court, the court found that Glenister had made scandalous allegations against the government, the ruling party and the SAPS, which were brought for collateral purposes. The High Court could not be faulted for "striking out material amounting to reckless and odious political posturing or generalisation which should find no accommodation or space in a proper court" (HSF v President of the RSA supra par 29). In the eyes of the court, "this stereotyping and political narrative is an abuse of court process. A determination of the constitutional validity of the DPCI legislation does not require a resort to this loose talk" (HSF v President of the RSA supra par 29).

In rejecting the appeal against punitive costs, the Chief Justice observed:

"Mr Glenister has always been represented by experienced Senior Counsel. And it ought to have been known that no good purpose would be served by the admission of the 'troubling, alarming and discomforting' mass of additional evidence he sought to have the Court admit. This is a manifestly inappropriate and frivolous course to pursue also because, on his own version, it seeks to project the public perception about corruption that was stale news already when Glenister II (Glenister v President of the RSA 2011 (3) SA 347 (CC). Glenister v President of the RSA 2009 (1) SA 287 (CC) (Glenister I) concerned the dissolution of the DSO) was decided. To seek to burden this Court with so many pages of hearsay, opinion, speculative, scandalous and vexatious evidence is conduct that must be discouraged.

In pursuit of an otherwise legitimate constitutional cause of ensuring that there is an adequately independent corruption-fighting agency in this country, Mr Glenister chose to be careless and to overburden the record with an ocean of irrelevancies. The worthiness of his cause should not be allowed to immunise him against an otherwise well-deserved adverse costs order. This Court has not made an order for costs against anyone litigating against the state for a long time and for good reason. If there would ever be a fitting case for a costs order, this is it. In the exercise of this Court's discretion on costs for the application to strike out the huge volumes of unnecessary evidential material, Mr Glenister must bear ordinary costs in the High Court and in this Court." (HSF v President of the RSA supra par 37-38)

The tricky question arising from LHR v Minister in the Presidency (supra) is whether Biowatch can shield a constitutional litigant from a punitive costs order where an urgent application was neither frivolous nor vexatious but the way in which the proceedings had been managed was manifestly inappropriate - largely on the grounds of the litigant's extreme belatedness, and the fact that it targeted an operation that was done and dusted. Also surfacing was the consideration that the constitutional litigant seeking to overturn the adverse costs award had advanced no acceptable basis on which the Constitutional Court could conclude that the High Court exercised its discretion unjudicially. The importance of the third finding, however, overshadows the earlier ones - specifically, the fact that the costs order at issue was unlikely to have a "chilling effect" on future litigation.

The main features of the matrix of facts on the basis of which the High Court exercised its discretion judicially, and upon which there was no basis for the Constitutional Court to interfere, concerned Operation Fiela (Reclaim). (The genesis of the large-scale armed forces operations was the recurrence of attacks on non-South African nationals in 2015. Search and arrest operations were carried out in private homes in the early hours of the morning without warrants. Scores of people were arrested. See also LHR v Minister in the Presidency supra par 1.) Six weeks after the Operation had been completed, LHR approached the High Court seeking urgent relief. It was a pre-emptive challenge in the sense that it was directed not only at the constitutional validity of the main operation but at future raids as well. Even though the High Court found that the litigation was not frivolous or vexatious, it had misgivings about the conduct of LHR. It did not express hesitation or reluctance in striking off the application on the basis that bringing it as an urgent matter was gravely inappropriate. It awarded costs on a punitive scale. An appeal against the costs award to the Supreme Court of Appeal was unsuccessful. The appellate court dismissed the leave application with costs.

At the heart of LHR's appeal against the adverse costs award lay two submissions. First, it was submitted that, in determining costs, the court of first instance considered neither Biowatch nor Phillips v SARB (2013 (6) SA 40 (SCA)). The main plank in the applicant's argument was that the High Court elided Biowatch despite the constitutional dimensions of the application. Phrased differently, there was an adverse costs order against a litigant seeking to vindicate constitutional rights. By drawing a close analogy with Phillips v SARB, the applicant contended that the High Court exercised its discretion unjudicially or in a manner that warranted interference. Phillips v SARB is the authority for the proposition that mere impatience on a private litigant's part, and acting inappropriately in a technical or procedural sense, does not amount to vexatious or manifestly inappropriate conduct. Secondly, the applicant placed great weight on the fact that its constitutional challenge was genuine and non-frivolous. This all pointed distinctly to acceptance that "the application before the High Court may not have been fundamentally misdirected and so unreasonable that merely bringing it counted against LHR" (LHR v Minister in the Presidency supra par 22). It could not be ignored that the principal relief that LHR sought raised constitutional questions of overriding significance. Simply put, it was seeking to protect the dignity and privacy of those affected.

On the point of inappropriate conduct of the proceedings, the unanimous bench of the Constitutional Court was in total agreement with the observations of the court a quo that "although the issues LHR raised before the High Court may in other circumstances have protected them if they lost the litigation, bringing them six weeks after the Operation - and giving the government respondents barely a day in which to respond - was not just imprudent. It was not proper" (LHR v Minister in the Presidency supra par 25). Since LHR did not act frivolously or inappropriately in seeking leave to set aside the High Court costs order, the court held that sparing it a costs order was justified.

Perhaps the most telling example of "manifestly inappropriate" litigation that was "so unreasonable or out of line that it constituted an abuse of process of court" is provided by Limpopo Legal Solutions v Eskom Holdings Soc Ltd (2017 (12) BCLR 1497 (CC) (LLS II)). The facts in LLS II were that Eskom received a telephone call or complaint that there was a loose electricity cable hanging dangerously. It promptly dispatched a technician and later a team of workers to the site. What is noteworthy is that the applicants went ahead with the urgent application despite Eskom's assurance to them - assurances supported by WhatsApp photographs -that the matter was receiving immediate attention. The question before the High Court was whether the applicants were justified at all in moving the application. Eskom insisted that the applicants had misled the court. It pointed out that the applicants were not candid about urgency. Aggravating their deceitfulness was that they deliberately withheld information from the court that Eskom had already fixed the cable. On any view, this was conduct of "utmost dishonesty" (Limpopo Legal Solutions v Eskom Holdings [2017] ZALMPPHC 1 par 23). What the applicants were seeking had in fact already been accomplished. The High Court held that their application was "irrational, ill-thought, capricious and/or superfluous" (Limpopo Legal Solutions v Eskom Holdings supra par 43). Another pointer to the extent of impropriety in the manner in which proceedings were conducted is that the applicants insisted on pursuing the litigation eight months down the line (LLS II supra par 15). The court at first instance could not be faulted for imposing costs on a punitive scale.

These were the facts that confronted the Constitutional Court on appeal against the High Court costs award. Relying on Biowatch, the applicants submitted that the High Court had overlooked that this was a constitutional litigation. It was further submitted that no order as to costs was appropriate because LLS was just an unsuccessful public interest litigant vindicating the fundamental right to a safe environment enshrined in section 24 of the Constitution. Eskom resisted the appeal on the grounds that the High Court order, including the costs award, was unassailable. The real gravamen of the submission by the respondent was that there was no constitutional issue at stake, and the costs order was anyhow warranted. Moreover, "the application was dead in the water by the time it was heard and the rule nisi discharged - dead, vexatious, and frivolous" (LLS II supra par 17). In sum, the court of first instance exercised its discretion judicially to protect its own processes.

With regard to awarding costs against constitutional litigants, the Constitutional Court noted that the High Court was justified in describing the first applicants' conduct as "irrational, ill-thought, capricious and/or superfluous". The context of the instant case was distinguishable from Limpopo Legal Solutions v Vhembe District Municipality (2017 (9) BCLR 1216 (CC) (LLS I)) and Limpopo Legal Solutions v Vhembe District Municipality (2018 (4) BCLR 430 (CC) (LLS III)). The basis for the Constitutional Court's merciful intervention in setting aside the adverse costs order in LLS I was confusion, not impropriety. It will be recalled in that case that there was justifiable confusion as to whether Vhembe District Municipality or Thulamela Municipality bore the responsibility of fixing the burst sewage pipe. In contrast, the Constitutional Court in LLS III overturned an adverse costs award by the High Court because the court below lumped the first applicant with costs without referring to Biowatch at all. In neither LLS I nor LLS III was there a suggestion that LLS had jumped the gun or behaved egregiously as in the instant case (LLS II) in misleading the High Court. The obverse is clear in LLS II. Suffice it to say, that the conduct of the applicants here fell without grip through the Biowatch safety net. Self-evidently, "the litigation was initiated without good cause. It served no serious purpose or value. And it was entirely unreasonable" (LLS II supra par 33).

Turning to the question of the scale of the costs award, the court in LLS II relied on Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging (1946 AD 597) and President of the RSA v Quagliani (2009 (8) BCLR 785 (CC)) in concluding that there was no basis for intervening in the High Court's costs award. It is clear from the longstanding Appellate Court principle enunciated in Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging that a court may consider it just to award a punitive costs order against the losing party, not just as punishment, but also to protect the successful party against being left "out of pocket". In President of the RSA v Quagliani, Sachs J rebuked the applicant's lawyer for bringing a last-minute application to postpone the court's delivery of judgment. (The SCA in Gamevest (Pty) Ltd v Regional Land Claims Commissioner: Northern Province & Mpumalanga 2003 (1) SA 373 (SCA) upheld a special punitive costs order against an attorney who conducted himself in a reprehensible manner. The attorney concerned prosecuted a case he had conceded). As a result of the lapse of professional judgement, attorney-and-client costs were awarded against the lawyer. If we go back to the present case, the first applicant actively misled the High Court to secure an interim order. Although it was asserting constitutional rights, its excess of zeal meant that it could obviously not invoke Biowatch to escape liability for costs.

It cannot be disputed that the applicant misled and abused the High Court processes. Further, the upshot, in the court's own words is that

"[i]t launched the urgent application seeking relief for a problem that, to the knowledge of its officers and its legal counsel, was there and then being fixed. The High Court's view that counsel was dishonest in taking the interim order the next day was, regrettably, warranted. And we must not forget that Eskom was severely prejudiced. It was dragged through unmeritorious litigation that it was at pains to avoid from the outset by doing its job - promptly and responsively. It is impossible to say that the High Court failed to exercise an impeccable discretion in concluding that the applicants' conduct must be met with the severest of rebukes in the form of a punitive costs award. Nor is there any reason why Eskom's exposure to out-of-pocket legal expenses should not be minimised by an order on the attorney and client scale." (LLS II supra par 38)

The arguments that previously assisted the applicant in persuading the Constitutional Court to overturn an adverse or punitive costs order following the dismissal of its urgent application could not be countenanced in this instance. Put concisely, there was no basis to reverse the punitive costs award imposed by the High Court.

But what about costs in the Constitutional Court? The court addressed this by pointing out that, unlike in the court below where the manner in which the applicants conducted the proceedings warranted a punitive costs award, their application in the Constitutional Court was not frivolous or vexatious, or manifestly inappropriate (LLS II supra par 43). All these are ways of expressing a conclusion that the Constitutional Court application fell within the generous ambit of Biowatch. Consequently, each party was ordered to party its own costs in the apex court.

 

3 Curtailing Stalingrad defence strategy

Law reports are studded with cases dealing with Mr Zuma's criminal prosecution and related civil proceedings (see for example, the disclosure of transcripts of the conversations recorded in the spy tapes in DA v Acting NDPP 2016 (2) SACR 1 (GP); Zuma v DA [2014] 4 All SA 35 (SCA) and his opposition to the DA's review application in Zuma v DA 2018 (1) SA 200 (SCA); DA v Acting NDPP 2016 (2) SACR 1 (GP); President of the RSA v Office of the Public Protector [2018] 1 All SA 576 (GP). The seemingly unending litigation is nothing but a manifestation of the high points of Stalingrad tactics that have led to the derailment of the administration of justice. The term "Stalingrad defence", Wallis JA explained in Moyo v Minister of Justice & Constitutional Development [2018] ZASCA 100 par 169, "[h]as become a term of art in the armoury of criminal defence lawyers. By allowing criminal trials to be postponed pending approaches to the civil courts, justice is delayed and the speedy trials for which the Constitution provides do not take place" (see also DA v President of the RSA [2018] ZAGPPHC 836 par 11). In the latter case, the full bench of the North Gauteng High Courts was asked to decide whether the then-sitting President of the RSA, Mr Zuma, should personally bear the costs incurred in his abortive urgent application launched a day before the release of the State Capture Report. The President had belatedly sought injunctive relief to prevent the finalisation and release of the Public Protector Report until such time as he had been afforded a reasonable opportunity to provide input into the investigation conducted by the Public Protector (PP). The President's application provoked a frenzy of activity by way of intervening applications by the EFF, UDM, COPE, DA and Ms Mentoor. Much later, the Minister of Co-operative Governance and Traditional Affairs also joined the fray.

At the stage that the President's application was to be heard, to the consternation of all, he made sudden volte face. He abandoned the application and tendered costs on the attorney-and-client scale as well as costs occasioned by the employment of two counsel, where applicable (President of the RSA v Office of the PP supra par 3). The case advanced by the intervening parties that the President should personally be mulcted with costs proceeded on the footing that he conducted litigation in a manner unbecoming of a reasonable litigant. The charge of unreasonable conduct flowed from the fact the President continued with litigation when it was apparent to all parties that the Office of the PP had filed an affidavit on 14 October 2016 confirming that the investigation had been finalised and the report signed (President of the RSA v Office of the PP supra par 33). There was no gainsaying that the proceedings ought to have been discontinued in light of the President's statement "in his answer to the DA's application, that if the investigation was finalised and the report signed, then the report had to be released" (President of the RSA v Office of the PP supra par 33). In brief, the foundational premise of the President when he launched his application was effectively obliterated as soon as the investigation was finalised and the report signed (President of the RSA v Office of the PP supra par 34 and 37).

The court brushed aside the President's reliance on a typing error or the possibility thereof. The record clearly established that the President's assertion of a typing error was an attempt to bolster his quest for amended relief (President of the RSA v Office of the PP supra par 43). Even so, the path to the amended relief was destined to fail. It seemed paradoxical that the amended relief the President sought was to review administrative action without following the mandatory Rule 53 or the Promotion of Administrative Justice Act 3 of 2000. The reason, as the court pointed out, was that "he sought to review and set aside the report without it being released" (President of the RSA v Office of the PP supra par 43). The requirement that a decision subject to review must be final is a familiar legal filter that serves to eliminate certain moot questions from being adjudicated (MEC for Education: KZN v Pillay 2008 (1) SA 474 (CC) par 30-35). In other words, "there can clearly be no review and setting aside of administrative action without the impugned decision being final and in the absence of the record underpinning that decision" (President of the RSA v Office of the PP supra par 43). Invoking Gauteng Gambling Board v MEC for Economic Development, Mlambo JP made the point that it was impermissible to award a simple punitive costs order because that would make the taxpayer carry the burden. The context of the litigation that the President had initiated called for a sterner reprimand. Not only had he no acceptable basis in law and in fact to have persisted with the litigation, "the President's conduct amounted to an attempt to stymie the fulfilment of a constitutional obligation by the Office of the Public Protector" (President of the RSA v Office of the PP supra par 47).

Undoubtedly, it must have occurred to the President that there was no basis whatsoever for continuing further with litigation - hence in vain the decision to withdraw the application at the eleventh hour and tender costs. The critical findings are elaborated as follows:

"The President's persistence with the litigation in the face of the finality of the investigation and report, as well as his own unequivocal statement regarding that finality, clearly amounts to objectionable conduct by a litigant and amounts to clear abuse of the judicial process. An abuse of the judicial process is evinced when a party conducts litigation in an unreasonable manner to the prejudice of those who are naturally forced to defend their interests. It is such conduct that has been viewed by courts as a justifiable basis to mulct the culpable litigant with a punitive costs order." (President of the RSA v Office of the PP supra par 46)

It is hard to disagree with the ultimate conclusion that the former President was unreasonable and a reckless litigator:

"[t]he President persisted with litigation and forced the intervening parties to incur costs in circumstances when this should and could have been avoided

as well as delaying the release of the report. In so doing he clearly acted in flagrant disregard for the constitutional duties of the Public Protector. What is also aggravating is the fact that the President's application was based on self-created urgency. Simply put, the President had become aware some six (6) months before his abortive application that the Public Protector was in possession of complaints implicating him in serious misconduct and he did nothing when he was invited for comment." (President of the RSA v Office of the PP supra par 49)

In the circumstances, the President's cavalier attitude to litigation compelled a determination that he must personally bear the costs that were occasioned from 14 October 2016. Beyond the question of costs reinforcing the norm of accountability (Okpaluba "The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law" 2018 33 SAPL 1; Okpaluba "Delictual Liability of Public Authorities: Pitching the Constitutional Norm of Accountability Against the 'Floodgate' Arguments" 2006 20(2) Speculum Juris 248), President of the RSA v Office of the PP has broader implications for the administration of justice. The salient feature of litigation involving the former President has been inordinate delay, extending over a decade. The fact the President incurred personal liability for costs would, it is submitted with respect, provide a strong incentive to securing finality. The imposition of a punitive personal costs order curtails Stalingrad strategy. It is to be hoped that the prospects of excessive delays are thereby much reduced. But the history of the President's proceedings

(NDPP v Zuma 2009 (2) SA 277 (SCA) par 2; Zuma v DA 2018 (1) SA 200

(SCA) par 1), and their cumulative delay, persuades one of the need to provide an incentive, indeed something of a goad, to progress. In this regard, President of the RSA v Office of the PP represents a cautionary tale to public officials litigating in their representative capacity.

 

4 Costs awards in crossfire litigation

One is here concerned with cases where the State is required to perform a regulatory role, in the public interest, between competing private parties. The balancing of competing claims on the purse and the allocation of resources is guided by the applicable statutory or regulatory framework. The ranges of issues envisaged include, among others, competition law matters (Competition Commission of SA v Senwes Ltd 2012 (7) BCLR (CC); Minister of Economic Development v Competition Tribunal [2012] ZACAC 2), environmental law (Earthlife Africa (Cape Town) v DG, Department of Environmental Affairs & Tourism 2005 (3) SA 156 (C)), restitution of land rights claims (Concerned Land Claimants Organisation of Port Elizabeth v Port Elizabeth & Community Restoration Association 2007 (2) SA 531 (CC)), and public procurement (Minister of Finance v Gore NO 2007 (1) SA 112 (SCA); Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC)). A crossfire dispute in this context turns on matters involving litigation between a private party and the State, with radiating impact on other private parties (Biowatch supra par 28). In effect, matters challenging the constitutionality of government action or omission, presented for adjudication by an aggrieved private party, will naturally implicate a number of private parties with vested interests in the outcome of the dispute. Regardless of the number of private litigants embroiled in the controversy, the proceedings cannot be characterised as between private litigants. The significant factor here is that it was primarily the failure of state functionaries to fulfil their constitutional and statutory responsibilities that spawned the litigation and forced both opposing private parties come to court.

Costs awards in crossfire disputes appropriately capture the intractable problem of location of risk of costs where opposing private parties are embroiled in a contest as a result of the State's failure to fulfil its statutory and constitutional obligations. The crisp question is: who should shoulder the costs incurred by a successful party where the State's conduct provoked the litigation in the first place? Broadly speaking, the determination of costs awards in crossfire constitutional proceedings underlines the constitutional tri-norms of accountability, responsiveness and openness that are foundational to constitutional democracy. Also surfacing on the horizon is the pervasive issue of governmental liability (Okpaluba and Osode Government Liability: South Africa and the Commonwealth (2010)).

Sachs J came face to face with the problem of costs awards in crossfire disputes where an organ of state was sued for its failure to perform regulatory functions regulating competing claims between private parties. The High Court had declined to accord preferential treatment to Biowatch notwithstanding that the latter was a predominantly prevailing party in a manifestly meritorious suit. Biowatch had obtained an order allowing it access to crucial information whose release Monsanto had vigorously resisted (Biowatch supra par 33 and 37). Biowatch's application also raised constitutional issues of enormous import, transcending the immediate interests of the parties involved - namely, the State, Monsanto and itself (Biowatch supra par 57). The High Court decision with respect to cost was anomalous in the sense that, on the one hand, it held that the State should not be saddled with costs incurred by the prevailing party while, on the other hand, it mulcted Biowatch with costs incurred by Monsanto. By the time the High Court judge disposed of costs in the case at bar, the guidelines set out in Affordable Medicines Trust v Minister of Health were already well entrenched. It bears repeating that in litigation between government and a private litigant seeking to vindicate fundamental rights, the accepted approach is that if government loses, it should pay the cost of the prevailing party, and conversely, if the government prevails, each party should bear its own costs.

The Constitutional Court found that the form of Biowatch's request for information, although lacking in precision, did not warrant decisions made by the High Court with regard to costs. The reasoning of the High Court judge displayed a lack of appreciation of the constitutional dimensions of the suit. Biowatch had raised an important and arguable constitutional issue. It also achieved a measure of success as it not only dealt with a number of preliminary objections aimed at keeping it out of court altogether, but prevailed with regard to the majority of information it sought (Biowatch supra par 37). In this regard, the learned judge's "failure to expressly locate costs awards in constitutional setting must raise serious doubt as to the weight, if any, given to the constitutional context" (Biowatch supra par 41). Sachs J expressed the point as follows:

"The Constitutional issues were implicated in two ways. The applicant was pursuing information in terms of a right conferred by section 32 of the Constitution, and the information sought concerned environmental rights protected by section 24 of the Constitution. The government's duty was to act as impartial steward, and not to align itself with parties seeking access to it. It was important that objectivity not only be present, but be seen to be present in circumstances where the information related to the question of general public interest and controversy, and there was no lawful ground to withhold it. This required objectivity and distance in respect of any competing private interests that might be involved. The greater the public controversy, the more the need for transparency and for manifest fidelity to the principles of the Constitution, as ultimately given effect to by PAIA ... In these circumstances rule of law considerations would require the government to be astute to act in a way which would encourage parties who have strong and diametrically opposed opinions to submit themselves to the regulated and rational balancing of interests provided for by the Constitution and PAIA." (Biowatch supra par 45)

A costs review in favour of Monsanto entailed the Biowatch court having to address the threshold question of location of risk of costs in an extra-curial battle between opposing private litigants triggered by the State's failure "to grasp the nettle and draw an appropriate line between information to be disclosed and information to be withheld" (Biowatch supra par 33 and 37). In the present case, neither Biowatch nor Monsanto acted badly. Monsanto as the intervening party was within its right to join the proceedings in order to protect information furnished by it that fell within the purview of confidential information. In intervening, Monsanto was prompted by the failure of the regulatory body to expeditiously and neatly deal with applicant's requests for information. That the intervening party was vexed by Biowatch's application for access to its information is to be expected, but that does not suggest that the application was conducted in a frivolous, vexatious, or constitutionally inappropriate manner (Monsanto SA (Pty) Ltd v Bowman Gilfillan [2011] ZACAC 5). The overriding consideration was protection of its interests. Considering that this was a mixed result case, no costs order should have been made between the private parties involved. The High Court's order that Biowatch pay Monsanto's costs is untenable and fell to be set aside. In a mixed result case, where neither party has acted badly, the determinative factor in resolving costs is to locate the risk at the correct door. Put differently, it starts with the recognition that it was the failure of the state functionaries to fulfil their constitutional and statutory responsibilities that triggered the litigation and obliged both parties to come to court.

The solution to the costs conundrum in crossfire litigation in which private parties in adversarial positions were engaged, not to settle a legal dispute between themselves, but in relation to determining whether the State had appropriately shouldered its constitutional and statutory responsibilities can be articulated as follows: the State should be saddled with costs incurred by the prevailing litigant, and ordinarily there should be no adverse costs orders against any private parties who were forced to enter the fray (Biowatch supra par 56. See also Hamiltonians for Progressive Development v City of Hamilton [2014] ONSC 420 par 8-10).

The case of Walele v City of Cape Town (2008 (6) SA 129 (CC)) is instructive of the sort of dispute between private parties that is compounded by the authorities' failure to fulfil their regulatory responsibilities. The applicant sought to review a decision of the municipality to approve building plans. The effect of the applicant's successful review was that the decision was set aside and referred back, adversely affecting the rights of the citizens that sought the approval of the building plans. The City Council as the body responsible for dealing with the proposed plans and objections made to them was mulcted with costs.

Also informative is the case of Fuel Retailers Association of SA v DG Environmental Management (2007 (6) SA 4 (CC)), in which the contest was essentially between the applicant and the authorities and the respondents. The case concerned the review and setting aside of the decision of the DG under section 22 of the Environment Conservation Act 73 of 1989 to grant the necessary authorisation for the construction of a filling station. The High Court and the Supreme Court of Appeal had dismissed the application. In setting aside the decision of the SCA, the majority held that the authorities had misconstrued the nature of their obligations and as a consequence had failed to comply with a compulsory and material condition prescribed by the law for granting authorisation to establish a filling station. With respect to costs, the Constitutional Court held that costs should follow the event. Therefore, the trust and its trustees must not be saddled with costs. They intervened and opposed the matter in order to safeguard their interests. It is these respondents who should pay the costs of the applicant while the remaining respondents who opposed the matter should look after their own costs.

 

5 Conclusion

The preferential treatment of costs in constitutional litigation is not a licence for litigants to institute frivolous or vexatious proceedings against the State. Even where litigation is aimed at asserting constitutional rights, if a litigant is guilty of unbecoming behaviour in relation to how proceedings are conducted, it may be mulcted with costs. The interplay between abuse of process, frivolous or vexatious proceedings and Stalingrad defence tactics demonstrate that, where an unsuccessful party has lowered its ethical and professional standards in pursuit of a constitutional cause, such a litigant would not be entitled to rely on Biowatch to escape liability for costs - not even a punitive costs order. The imposition of a punitive personal costs order may serve to inhibit a resort to Stalingrad defence strategy. In costs awards in crossfire litigation, triggered by a failure of state functionaries to fulfil their constitutional and statutory responsibilities, it follows that the State should be saddled with costs incurred by the prevailing litigant, and ordinarily there should be no adverse costs orders against any private parties who were entangled in litigation.

 

Tumo Charles Maloka

University of Limpopo

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ARTICLES

 

Putting the relationship between states and the icc into perspective: the viability of national courts in driving complementarity in Africa

 

 

Justin Ngambu Wanki^I; Grace Bilounda Mundela^II; Michelo Hansungule^III

^IDEUG, Licence, Maitrise en droit LLM LLD Post-Doctoral Research Fellow, University of Pretoria
^IILicence, Maitrise en droit LLM Researcher in Humanitarian and International Criminal Law, University of Pretoria
^IIILLB LLM PhD Professor of Human Rights, University of Pretoria

 

 

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SUMMARY

This article discusses implementation challenges of the principle of complementarity; challenges in prosecuting sitting African Heads of state and nefarious warlords. The article highlights the disparity existing in physical security and remuneration between judges of national African courts and those of the ICC in similar jobs. While national judges are exposed to intimidation and influence from the most powerful in their jurisdictions, the ICC judges are provided with adequate protection and independence. Using the DRC and Kenya as case studies, this article asserts that where national courts intervene in prosecuting international crimes, heads of state would not be prosecuted. In most African states, the courts are spawned from the authoritarian regimes. This challenge renders the reliance on complementarity justice questionable.

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1 INTRODUCTION

Pursuant to Article 17 of the Rome Statute on the admissibility criteria, the International Criminal Court (ICC) only assumes its jurisdiction in circumstances where a state has failed genuinely to investigate and prosecute a given situation where crimes under its jurisdiction have been clearly committed.¹ These crimes include crimes against humanity, genocides and war crimes.²

Under the Rome Statute establishing the ICC, unlike most ad hoc security courts such as the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) that have primacy over national courts, the ICC peremptively defers to the competence of domestic courts.³ As a result, the jurisdiction of the ICC is only triggered when the national courts are unable or unwilling to prosecute alleged offences.⁴ This has become known as the principle of complementarity under international criminal law.

The principle of complementarity has grown to be accepted as being well suited to dealing with international crimes. This is so because the involvement of a public-law dimension appeared to be at odds with an absence of an underlying system of shared social ethics, given that the international regime knows no global sovereign and that morals differ from country to country.⁵ Consequently, giving national courts primacy to take action in a situation where an international crime has been committed is the way to go.

The Preamble to the Rome Statute is clear that the ICC's jurisdiction will be complementary to that of local jurisdictions as enshrined in Article 17 of the Statute.⁶ National implementation obligations taken up by states that show interest in becoming members of the Rome Statute are quite extensive. According to the Rome Statute, effective prosecution will only result if steps are taken from the national level, including international co-operation.⁷

Pursuant to Article 12 of the Rome Statute, a state accepts jurisdiction by becoming a state party, or if the state is a non-party to the Rome Statute, it can declare its acceptance of jurisdiction. Given that the ICC lacks most of the institutions required for the progressive handling of a criminal matter such as a police force and others, it has to rely on the assistance and cooperation of national mechanisms and state agencies.⁸

Implementation of the principle of complementarity calls for the concomitant engagement of the principle of jurisdiction. Jurisdiction ascertains the degree to which criminal acts committed are under the power of a state.⁹ The general principle under international law is that for a person to be accused of committing crimes before a domestic court, one of the four principles, which include territoriality, active nationality, passive nationality and universal jurisdiction, must be recognised.¹⁰

The aim of this article is to analyse the most overwhelming challenges faced by a majority of African national courts in implementing the principle of complementarity. In the process of the analysis, this article engages with a number of factors that have the potential to inhibit the realisation of this objective. These are the independence of national courts in Africa, the independence of judges in Africa, physical protection provided by government to judges in Africa, and the degree to which the pay package of judges in Africa is commensurate with the mammoth task with which they are entrusted. These factors are compared with the same factors in relation to ICC judges.

The next section of the article reflects on the prosecution of heads of state who are still in office in Africa, and of nefarious warlords. Thereafter, the article elaborates on the security and remuneration of judges of national African courts vis-a-vis that of ICC judges in discharging similar duties. The discussion here refers to a lack of self-protection and the dangers to which African judges are often exposed, given that nefarious warlords or powerful heads of state who have been indicted may threaten the lives of judges, which serves as a disincentive for judges to entertain such matters. The article also establishes that the intervention by municipal courts is reminiscent of double standards, given that only rebels are likely to be prosecuted. Most African countries' constitutions provide immunity for their sitting heads of state. A majority of African countries are authoritarian and the courts are spawn of the regimes.¹¹ Yet, independence of the judiciary is a recognised tenet of the rule of law.¹²

 

2 THE PRINCIPLE OF COMPLEMENTARITY AND THE PROSECUTION OF HEADS OF STATE

The principle of complementarity attributes the primary jurisdiction over international crimes to national jurisdiction. Nevertheless, when national jurisdiction fails to carry out that mandate, then the ICC takes over that role. Although the criminal-law systems of national courts provide justice for victims and due process for accused persons under international law, these states have often been unable or unwilling to fulfil that mandate.¹³

Moreover, universal jurisdiction in absentia has been used by the Princeton Principles on Universal Jurisdiction¹⁴ in its Principle 1 on the fundamentals of universal jurisdiction. This principle was also applied by the International Court of Justice in the Democratic Republic of Congo v Belgium (Arrest warrant case) of 2000.¹⁵

Ratification of the ICC Statute constitutes significant evidence of acknowledgment by states parties of their duty to reject impunity, to prosecute and to punish those who commit international crimes. The situation of two African states parties that have implemented the ICC Rome Statute at the national level (the Democratic Republic of Congo (DRC) and Kenya) is discussed hereunder.

2 1 The Democratic Republic of Congo (the DRC)

The Congolese justice system demonstrates the weaknesses and fundamental gaps and flaws that allow impunity to continue for past and current crimes committed in the DRC under international law.¹⁶

Despite efforts to bring about reforms to the justice sector and promote the fight against impunity by the ratification of the Rome Statute since March 2002, the outlook for justice at the national level remains bleak in the DRC. Few people have access to existing justice mechanisms, and confidence in the justice system is low. Victims and witnesses are reluctant to come forward, as there is no national system in place to protect them.¹⁷

Years have lapsed since the DRC ratified the Rome Statute in March 2002 but the DRC government has yet to meet its legal obligation to incorporate the statute into national law because the Senate must approve the Bill to that effect.¹⁸ Such legislation is essential to ensuring complementarity between the Congolese national jurisdiction and the ICC, and also to strengthen the country's legal system so that it can end the ongoing cycle of impunity of all perpetrators for the most egregious international crimes they have committed in the country.¹⁹

Article 9 of the 2001 draft legislation, which prepared the DRC for the implementation of the ICC Rome Statute before ratification and the integration of its norms into the Congolese law, provides that it "applies to all in like manner, with no distinction made based on official capacity".²⁰However, the 2001 draft legislation was replaced in October 2002 with the Draft Law implementing the ICC Statute (Draft 2 of October 2002).²¹

After ratification of the ICC Rome Statute, the Congolese parliament improved the Military Criminal Code (MCC) and granted the jurisdiction exclusive power over international crimes.²² The military courts have proceeded to adjudicate over international criminal crimes committed in the DRC. For instance, the military court of garrison of Haut Katanga on 5 March 2009 convicted the Mayi Mayi commander Gédéon Kuyungu Matunga and 20 other combatants for serious crimes; it also invoked and applied the provisions of the Rome Statute in the case of TMG de Mbandaka, Affaire Songo Mboyo, 12 April 2006, RP 084/05²³and many others.²⁴ In this case, the salary of soldiers had been stolen by a captain who was their commander and this resulted in mutiny in Songo Mboyo.²⁵ This was followed by reprisals by former rebels who awaited integration in the army according to a "global agreement."²⁶ The violence led to the rape and death of several women. The rape survivors laid charges against the TMG of Mbandaka and the military prosecutor charged the soldiers with the crime against humanity of rape.

Nevertheless, in the military justice system, officers defended soldiers under their command from justice and the political and military hierarchy protected senior military figures. This is of particular concern in a country where the army is one of the main perpetrators of crimes under international law.²⁷

The DRC has signed and ratified many international instruments addressing international crimes - such as the Geneva Convention of 1946, the ICC Rome Statute, the African Charter on Human and Peoples' Rights (ACHPR) and the International Covenant on Civil and Political Rights (icCPR), among others. Article 215 of the Constitution of the DRC stipulates that "lawfully concluded treaties and agreements have, when published, an authority superior to that of the law, subject to each treaty and agreement to its application by the other party". ²⁸ Therefore, all perpetrators of international crimes including state officials must be prosecuted and punished for their crimes. Moreover, Article 10 of the 2002 Draft Bill provides that the law must be applied equally without discrimination or distinction based on the official position.²⁹ In other words, any state official, including the head of state, would in no case be exempt from criminal prosecution and responsibility. This law has been implemented by the Penal Code, but it fails to address the issue of distinction based on official position. Nevertheless, the DRC has ratified the Rome Statute and this treaty enforces that provision.

The provision also provides that "immunities or those special procedural rules that may attach to the official capacity of a person, pursuant to the law or under international law shall not bar the jurisdiction from exercising their competent jurisdiction over that person".³⁰ It is accordingly submitted that impunity cannot be tolerated, regardless of who orchestrates grave breaches. However, the authors believe that given the perception that Africans attach to the role of a president, it is recommended that this responsibility should be discharged with wisdom and prudence.

2 2 Kenya

The post-election crisis of late 2007 and early 2008 is considered to be the consequence of Kenya's historical politics. ³¹ Kenyan politics has been characterised by five negative factors: ethnicity, dictatorship, criminal gangs, political alliances and impunity.³²

Subsequent to the announcement of the contested presidential election results on 30 December 2007, which gave a second term to Mwai Kibaki, Kenya was plunged into its worst political and humanitarian crisis from December 2007 to February 2008; violence caused the death of a thousand of people and the displacement of 300,000, both aspects having a serious ethnic character.³³

Pursuing accountability for serious crimes committed in Kenya after the presidential election, the outcome of the Kenya National Dialogue and Reconciliation Accord of 28 February 2008 was to set up a Commission of Inquiry on Post-Election Violence (CIPEV), also referred as the Waki Commission after chairman Judge Philip Waki. The Waki Commission's mandate was to investigate the facts and surrounding circumstances related to the serious crimes committed after the presidential election, as well as the conduct of state security agencies in handling their responsibilities, and to make appropriate recommendations on these matters.³⁴

In October 2008, the major recommendation of the Waki Commission was the creation of a Special Tribunal for Kenya. Both Kenyan and international judges had to seek accountability of individuals who bore the responsibility of international crimes. In December 2008, Kenya enacted the International Crimes Act 2008 to implement the Rome Statute in its legislation.³⁵

Failing in their responsibility to prosecute perpetrators of the serious crimes, on 31 March 2010, Kenya handed over the case to the ICC, which authorised the prosecutor to act proprio motu to start an investigation into Kenyan post-election violence.³⁶

The result of this investigation was that, in January 2012, charges were confirmed against Uhuru Kenyatta and William Ruto (elected in 2013 as president and deputy president of Kenya respectively); these included several counts of crimes against humanity such as killing (murder), forcible transfer of population, persecution, sexual offences and other inhumane acts.³⁷

Despite their high-ranking office, the question of immunity ratione personae did not constitute a barrier to their prosecution according to the International Military Tribunal of Nuremberg and the ICC under Article 27 of the Rome Statute, the International Criminal Law Commission and some scholars.³⁸ In fact, Kenyatta and Ruto did not face criminal proceedings in their positions but rather in their personal capacity.³⁹

In response to the result of the investigation, the Kenyan government decided to bring the case back to the country, based on Article 17 of the Rome Statute, in order to let the national courts, the East African Court and the African Court of Justice and the African Court of Human and Peoples' Rights prosecute the perpetrators.⁴⁰ Later in 2012, the Director of Public Prosecution (DPP) established a multi-ag₄e₁ncy with the mandate to prosecute the cases of post-election violence.⁴¹

All five counts of crimes against humanity are also punishable under Chapter XIX (killing), Chapter XV (sexual offences) and Chapters XXII and XXIV (protecting life and health) of the Kenyan Penal Code, which is more punitive than the ICC Rome Statute.⁴²

Unluckily for the victims of post-election violence, on 5 December 2014, the prosecutor (Fatou Bensouda) withdrew the charges of crimes against humanity against President Kenyatta, citing absence of sufficient evidence to proceed, while the case of Ruto and other perpetrator are still pending before the ICC's Pre-Trial Chamber.⁴³ Moreover, the prosecutor accused the Kenyan government of refusing to handle important evidence in the case, and of intimidation of witnesses.⁴⁴

Although Kenya has a criminal justice system that includes the International Criminal Act 2008 and constitutional protection for the most fundamental human rights, the post-election crimes remain a major problem owing to the lack of investigation or the lack of interest in prosecuting the crimes by the Office of the Director of Public Prosecutions.⁴⁵ Consequently, the International Crimes Division of the Kenyan High Court, proposed by a committee of the Judicial Service Commission (JSC) on 30 October 2012 and intended to prosecute post-election violence cases as well as other international and transnational crimes, may end up with no cases to prosecute.⁴⁶

2 3 Obstacles to the principle of complementarity

Given these facts, it is important to highlight that the ICC functions differently from national criminal courts in a number of important respects. Despite the existence of all necessary provisions in the two African countries under survey, they have failed the litmus test to establish proper and genuine implementation of such provisions. The primary responsibility to investigate and to prosecute crimes lies with the national authorities.⁴⁷ The fundamental principle governing the functioning of the ICC is the principle of complementarity, in terms of which prosecutions are deferred to the national state.⁴⁸ The ICC also has limited jurisdiction based on the territorial principle and the active national principle, apart from the principle of complementarity between the ICC and national courts.⁴⁹ From the analysis of the DRC and Kenya, it is clear that notwithstanding the domestication of the ICC statute, this has not resulted in the prosecution of international crimes.

Although the ICC only functions effectively if a state ratifies the Rome Statute, the provisions of the ICC already constitute a braking impact on the state's justice system.⁵⁰ Nonetheless, the jurisdiction of the ICC is activated only when there is unwillingness by a state to prosecute crimes under Article 5 of the ICC Rome Statute (crimes against humanity, war crimes and genocide), or inability in the case of a collapse of the judicial system or a lack of effective means at national level.⁵¹ Thus, the ICC can admit a case where there is a lack of implementation in the national legal system. Applicable international standards, including the Statute under Article 21 of the Rome Statute, are a consequence of "incapability" of national jurisdiction to provide justice in the given case.⁵²

The ICC can act where its jurisdiction has been accepted by the state in which the crimes were committed. The ICC can also act in the process of implementation lato sensu (in general) where a state is not party to the Rome Statute, as a means of avoiding the commission of such crimes in the state's territory by its state officials or by its nationals in third states.⁵³Moreover, the ICC may also intervene in terms of its powers under Article 13(b) of the Rome Statute if:

"a situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the [United Nations] Security Council acting under Chapter VII of the UN Charter even for crimes committed by nationals of or on the territory of non-state parties."⁵⁴

For instance, the situation in Darfur, Sudan since 1 July 2002 was referred to the prosecutor of the ICC by the Security Council on its Resolution 1593 (2005).⁵⁵

Despite the useful framework put in place for the purpose of implementing complementarity, an important question still remains: which judge in a national jurisdiction has the temerity to prosecute a sitting head of state? What makes the situation more complex is that in most of these jurisdictions, judges depend on the executive for their promotion and financial remuneration, and most often, the executive also has powers to discipline the judges. These factors pose a challenge to the realisation of complementarity in Africa.

 

3 THE FAILURE OF THE STATE TO PROTECT JUDGES

This section seeks to demonstrate the failure of states to secure or protect the lives of judges in Africa when compared to ICC judges who discharge similar duties.

The point of departure is that the principle of complementarity leaves the primary duty to prosecute heads of state (where necessary, as explained above) in the hands of local judges. In the event of failure or inability to carry out this function, the ICC steps in.

It is commonly observed that although the local judge has a daunting task to accomplish compared to that of the ICC judge, he or she lacks adequate security in terms of remuneration and life or human security.

The local judge lives in the same jurisdiction as the warlord or head of state who he or she must indict. Nefarious warlords may threaten judges' lives or those of their families because local judges are not given adequate protection by government. Again, an indicted head of state who is being prosecuted tends to command enough financial resources and influence to mobilise an illegal militia or loyal patronage networks if such head of state should wish to make life unbearable for the judge - an inert incentive for the judge to drop a case or recuse himself or herself permanently.

To avoid encroachment on human rights, judges have a duty, according to theorists, to reach a judgment that ensures the sense of a just application of facts and substantive law.⁵⁶ However, in Africa, this is far from being true because most judicial organs are not inde₅₇pendent but rather serve as a mouthpiece of authoritarian governments.⁵⁷ As a result, national courts' justice may only be reminiscent of the victor's justice and court - that is, justice as dictated by the strongest or more influential of the two parties

3 1 Financial security

Judicial independence is promoted by granting life tenure to judges, which ideally empowers them to decide cases and to make rulings according to the rule of law and judicial discretion, even if powerful interests oppose those decisions. Nevertheless, the financial security of judges in Africa seems to be a worrying issue as low payment only serves as a disincentive for judges to uphold the required standards.

3 1 1 Democratic Republic of Congo

Politicians in the DRC have constantly manipulated judges to the extent that judges are now accused of having become corrupt in order to supplement low salaries; that they are facing major independence challenges makes it more obvious that the judiciary may be vulnerable to corruption.⁵⁸ Some 1 700 judges of the DRC suspended a strike on 6 January 2004. The purpose of the strike was to demand better pay and working conditions, as well as greater independence of action. That the judiciary is not independent was among the reasons that their request for a salary increment could not be met.⁵⁹ This view suggests that an independent judiciary would enable judges to run their affairs without executive interference and as a result that the issue of their salary allocation should be fixed independently - probably to be voted on by Parliament, and not allocated by the executive. Whenever the salary of judges is allocated by the executive, a judge must defer to the authority of the executive for the latter to undertake any reform favourable to him or her.

Sambay Mutenda Lukusa, the president of the Gombe Court of Appeals and president of the judges' union, noted that "the financial question was part of our larger concern of ensuring an independent judiciary". At that time, the salaries of judges were between $15 (US) and $40 per month and they were asking for an increase in their salaries up to at least $950 per month and for payment of salary arrears.⁶⁰ However, there is still a problem of financial autonomy and security that pushes judges to engage in corrupt practices. The judiciary receives less than one per cent of the budget of the country; they cannot live comfortably without being tempted by corruption to supplement the basic subsistence of their families - that is, health care, shelter, transport and education for their children and food for their families.⁶¹

Indeed, the Constitution provides that the judicial power has a budget to be included in the DRC's general budget.⁶² The salary of judicial officials such as the First President of the Supreme Court, the Attorney General of the Supreme Court, the President of the Constitutional Council, the President of the Court of Auditors and the Commissioner of Law before the Constitutional Court has increased to 5 million francs ($3 192.61).⁶³

However, the realities faced by judges, magistrates and the entire judicial support staff in the DRC are stark. Justice Dhekana has stated: "we don't even have a budget to run our office. To get money, we have to hassle the people in our cases." Every year, the judges write a report to the national government, explaining their needs. "Nothing ever happens".⁶⁴ Moreover, the judge also pointed out that they are not working in a professional and conducive space. For instance, there is no electricity in Bunia's judges' office, except for a small solar panel; no chairs existed until UN peacekee₆₅pers donated some furniture, and the clerk uses a typewriter for all his work.⁶⁵

Unfortunately, the salary that Justice Dhekana receives as a judge at Bunia's court is $600, which cannot support his family.⁶⁶ Consequently, the judges extort money from the parties in the cases before them.⁶⁷

3 1 2 Kenya

The government of Kenya provides funds to all staff members of the judicial power in terms of the Constitution of Kenya, which states in its Article 160(3) that "the remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund".⁶⁸

However, there are cases of corruption of the judiciary that tarnish its reliability. This was demonstrated in the case of a judge of the Supreme Court of Kenya, Philip Tunoi, who was accused by journalist Wilson Kiplagat of accepting a bribe amounting to $2 million (£1.4 million) from Dr. Evans Kidero to facilitate his victory to become the governor of Nairobi during the 2014 election.⁶⁹ This view was affirmed by his defeated opponent Ferdinand Waititu, who also claimed "he had fresh evidence indicating that Tunoi received Sh200 million to declare Kidero as the governor."⁷⁰ It is probable that more judges of the highest court in the land may have benefitted from the alleged bribe. Further evidence suggested that the bribe amount was not $2 million but about $3 million for four judges, but two of the judges were paid separately.⁷¹

The new Chief Justice, David Maraga, has also stated that ten per cent of staff in the judiciary are involved in this corruption, thereby tainting the image of the judiciary. This ethos has pushed the Chief Justice to wage a campaign against corruption in the judiciary.⁷² Presently, the judiciary in Kenya is seen not only as a corrupt institution but its rulings are also seen as judicial populism. After the presidential election of 8 August 2017, the Supreme Court, composed of four judges, including Chief Justice David Maraga, agreed on the nullification of Uhuru's win. Despite the fact that two other judges Njoki Ndung'u and Jackton Ojwang made a decision on 1 September 2017 annulling the result of President Uhuru Kenyatta, he was retained as the President of Kenya.⁷³

As a result of this diversity in views by the judges, politicians have in turn attracted different opinions depending on their political orientations. For politicians who occasionally manipulate the votes of the people, the nullification of Kenyatta's win has been seen as the emergence of judicial populism - that is, judges are seen as meddling with the popular choice. A critical analysis of the situation calls for an examination of the three powers: executive, legislative and judicial. The representatives in the legislative executive powers are voted for by the people in terms of Article 94(1) and (2) and Article 129(1) and (2) respectively of the Constitution.⁷⁴ In contrast, the judicial power - in particular, the judges of the Supreme Court - are chosen by the president of the country and the Judicial Service Commission in terms of Article 166(1)(a) and (b). ⁷⁵ The election of a president of the country implies the choice of the people. However, judges, who have not been voted for by the people, may have taken the nullification decision in the interest of the people or they may₇₆have taken the decision following the procedure of election investigation.⁷⁶ For opposition leader Raila Odinga and his supporters, this decision is considered as a decision taken in favour of the people, but for President Uhuru Kenyatta and his supporters, it is also considered to be a decision against the people.⁷⁷

Indeed, financial insecurity as mentioned above supports the malfunctioning of the judiciary. Although each Constitution provides for a budget allocated to the members of the judiciary, this seems to have been ignored resulting in complaints by members of the judiciary relating to low salaries. The low salaries suggest either that government is unwilling to pay the judiciary or there is a lack of money in the state coffers. Since it is in the interest of the executive to subjugate and manipulate the judiciary to act according to its dictates, the former reason is likely to be correct. These factors serve as obstacles to a national judge in dispensing justice relating to international crimes in the same manner as the ICC.

3 2 Independence of the judiciary

The principle of an independent judiciary originates in the theory of separation of powers, whereby the executive, the legislature and the judiciary form three separate branches of government. Independence means that the judiciary must be able to decide on a case without being influenced by the executive, the legislature or any powerful person.

However, experience in Africa shows that judges are often subjected to pressures of different kinds, thereby compromising their ability to exercise their responsibilities.

3 2 1 Democratic Republic of Congo

In the DRC, the Constitution provides that the judicial power is independent of the executive and the legislative power.⁷⁸ Neither the executive nor the legislative power has the right to give orders to judges in the exercise of their judicial powers⁷⁹ However, the DRC's judicial system exemplifies a lack of independence relating to the administration of justice. Notwithstanding the principle of separation of powers enshrined in Article 149 of the Constitution, the executive continues to interfere with the judiciary.

In the DRC, military courts under the Military Criminal Code, which covers international crimes under the ICC Rome Statute, may only entertain serious crimes. However, several reasons make for a mediocre performance of the professional responsibilities of military justice,⁸⁰ such as financial insecurity as explained above, interference by the executive in the administration of justice in order to protect leaders of armed factions from being prosecuted in military courts, and political pressures on prosecutors and courts to abandon proceedings that have already begun a₈₁gainst former allies among the leaders of rebel or resistance movements.⁸¹

On 12 May 2006, the former Mayi-Mayi chief of North-Katanga Gédéon Kyungu Mutanga received protection from his former allies in the government in Kinshasa. This took the form of pressure to influence the investigation and, instead of being held in a cell, he was held in pre-trial detention at the officers' mess of the armed forces of the DRC (FARDC).⁸²

The murder of MaÏtre Charles Katambay, a member of the NGO Groupe des Sans Voix (group of those who have no voice) of the DRC Bar Association and of an association for the defence of judges that occurred on 25 May 2003 by a soldier from RDC-Goma (the Rassemblement Congolais Pour la Démocratie, a guerrilla rebel faction) in front of his house in Uvira. His work related to human rights activities is suspected to be the reason for his assassination.⁸³ The murder of MaÏtre Charles Katambay is a clear mishap and indication of the existing challenge of the physical protection of judges and legal personnel in general in national courts in Africa.

322 Kenya

Article 161(18 of the Kenyan Constitution provides for the independence of the judiciary.⁸⁴ However, the judiciary in Kenya also faces intimidation from the executive and legislative powers. After nullification of the August 2017 election results, judges have been threatened.⁸⁵ The Chief Justice David Maraga has denounced the intimidation of members of the judiciary by politicians. Judges and members of the judiciary often receive threats, especially from Uhuru Kenyatta's political party who are ready "to cut the judiciary down to size".⁸⁶ The Chief Justice has also disapproved of the conduct of the Inspector-General of the police, who has failed to provide security for the life and property of members of the judiciary who are under

threat.⁸⁷

Following the threats constantly received by judges, Femi Falana, human-rights lawyer, wrote to Diego Garcia Sayan, UN Special Rapporteur on the Independence of Judges and Lawyers, calling for an investigation into the attacks on the judges of Kenya:

"I am writing to respectfully request that you use your good offices and position to urgently investigate recent reports of attack on judges in Kenya, and to make it very clear to the Kenyan authorities that your mandate will not accept intimidation, harassment or any form of attacks against judges and other actors of the justice system ... individual judges, particularly of the supreme court, as well as other judicial officers and staff have been attacked, threatened and negatively profiled on social media ... I am seriously concerned that these attacks are coming at a time when the judiciary is starting to hear the 339 petitions already filed in various courts. The attacks on judges and court officials would seem to be politically motivated".⁸⁸

This struggle is meant to empower the judiciary to decide all the cases before it impartially in accordance with the law, without any restrictions, improper influences, and direct or indirect pressures from government or any powerful person for any reason. It is clear that most national courts and judges in Africa may be tempted to avoid certain cases relating to international crimes for fear of retaliation from the powerful whom they have indicted. The people indicted live in the same environment with the judges and also command numerous defence networks on the ground that could be directed against these courts. Conversely, for ICC judges, there are two reasons that those whom they prosecute may command little or no threat against them. First, judges are based in The Hague, disconnected from the environment of those prosecuted, thereby weakening the latter's influence. Secondly, the defence networks of the prosecuted are based in ground zero in Africa. This conclusively suggests that the ICC judge who indicts a sitting president or warlord is more inclined to act without fear or favour than the judge of a national court in Africa who is faced with numerous obstacles.

 

4 CONCLUSION AND RECOMMENDATIONS

4 1 Conclusion

Given the existence of numerous challenges for local African courts in complying with the principle of complementarity,, as demonstrated above, it is evident that much still needs to be done if this principle is to gain prominence in international criminal law. It should be noted that numerous dangers exist when states are allowed to refer cases to the ICC as delineated under the competence of referrals to the ICC. This is because in most African states, relinquishing power by an incumbent has not come easily.

The authors have discussed the various challenges that are faced by national courts in their attempt to implement the principle of complementarity. These shortcomings have stood in the way of local courts' addressing international crimes and dispensing justice to those who desperately need and deserve it. Owing to factors, among others, such as poor payment of local judges and lack of physical protection for them, it becomes difficult for these judges to rule in sensitive matters such as the prosecution of international crimes committed by the most powerful individuals in the state with the same degree of independence exercised by their counterpart-judges of the ICC.

National jurisdictions can only be said to be unable to prosecute international crimes within a domestic arena when the State has not yet domesticated the ICC Rome Statute. However, this article establishes that there are several national jurisdictions that have domesticated the ICC Statute, but which have nevertheless failed to prosecute these crimes. For instance, Kenya and the DRC, and also countries like South Africa, Chad and Malawi, among others, have failed to prosecute Al Bashir of Sudan for war crimes, even though they are parties to the Rome Statute. It follows that African national jurisdictions are unwilling to prosecute international crimes. Some of the challenges advanced above could explain why they are unwilling. In other words, it is suggested that these shortcomings exist as a result of the context within which justice is required to be meted out. The African environment is still predominantly governed and controlled by dictators and warlords who take no account of respect for human rights and justice.

Many citizens have become fed up with the authoritarianism of such African governments and have embraced rebellion as a last resort to overthrowing such illegitimate governments who have tightened their grip on power against the will of the people. Some of these countries are parties to the Rome Statute and some are not. A few examples of authoritarian governments in Africa are the DRC, Cameroon, Uganda and to a certain degree, Nigeria. In the course of such struggles, gross human-rights violations are bound to be committed by both factions. In these situations, the State is always quick to refer actions by rebels to the ICC as a means of eliminating opposition to their authority under the thin guise of attempting to curb human-rights violations, given that government itself cannot be absolved of gross human-rights violations resulting from confrontations. The nature of the referrals of Thomas Lubanga from the DRC and Joseph Kony from Uganda can attest to this paradigm.⁸⁹

For a state to accept jurisdiction over egregious crimes committed during an armed struggle by opposing warring factions simply means that the government is judge in its own cause; in most African states, as examined above, courts are spawn of the regime and separation of powers is mostly symbolic or nominal. As a consequence, national courts would rarely rule against a sitting head of state even if it were proven that he or she had committed gross human-rights violations.

Therefore, the principle of complementarity faces two major challenges or setbacks in its implementation domestically. If local courts intervene, the executive might manipulate the verdict to its advantage. Yet, the matter will only be referred to the ICC when it is politically expedient for the executive to do so, rather than when there is a genuine interest in meting out justice or rooting out impunity.

4 2 Recommendations

National interest should be considered in the course of responding to an international crisis. The principle of national jurisdiction to prosecute offenders in international human-rights law should be applied to everyone to avoid insubordination. If this view is ignored, a time will come when national courts start agitating against complementarity. For instance, it is said that Al Bashir has been targeted by the ICC over the commission of international crimes,⁹⁰ whereas George Bush and Tony Blair are still at large after committing the same international crimes in Iraq.⁹¹ The standard for indictment or prosecution should be uniform across the board.

It is recommended that the international community should adopt measures that expressly define the position of former heads of state, particularly in Africa. While the Rome Statute seems to remedy the existence of immunity of heads of state by providing that every person regardless of their position is subject to the jurisdiction of the court in instances where human rights have been violated, this cannot guarantee an effective capacity to prosecute, given that the ICC constitutes merely a complementary capacity to national jurisdictions, and not an exclusive jurisdiction in international matters.

It is also recommended that the African Union, together with the ICC, should be able to adopt resolutions or declarations to enforce the independence of the judiciary in Africa. The salaries of judges should be voted on directly by Parliament and should include huge financial incentives to discourage judges from becoming corrupt so that they may discharge their duty without fear or favour. The ICC, the African Union and national governments must finalise a pact on the creation of a security unit exclusively for the maximum protection of judges involved with international crimes. Such a measure would encourage and embolden judges to discharge their mandate fearlessly. At the same time, this measure would discourage implicated heads of state and warlords from threatening judges because they would be aware of such maximum protection and their determination to root out criminal responsibility in terms of international law.

This process would also inspire confidence and it certainly culminates in establishing the independence of the judicial power over executive power in African jurisdictions. Proper independence of the judiciary can lead to implementation of the rule of law and respect for international human rights in Africa.

All African states should be persuaded to implement the Rome Statute principles in order to ensure that grave and atrocious international crimes do not go unpunished and in order to end impunity at the national level with the help of complementarity.

 

 

1 Jurdi The International Criminal Court and National Courts: A Contentious Relationship (2016) 132.
2 Which crimes fall within the jurisdiction of the ICC? https://www.icc-cpi.int/about?ln=en (accessed 2018-11-03).
3 Burke-White "Implementing a Policy of Positive Complementarity in the Rome System of Justice" 2008 19 Criminal Law Forum 59.
4 Ibid.
5 Brandon and Du Plessis The Prosecution of International Crimes: A Practical Guide to Prosecuting ICC Crimes in Common Wealth States (2005) xi.
6 Du Plessis "Complementarity and Africa: The Promises of International Criminal Justice" 2008 African Security Review 156.
7 Ibid.
8 Du Plessis 2008 African Security Review 157.
9 Brandon and Du Plessis The Prosecution of International Crimes 17.
10 Ibid.
11 Fombad "Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa" 2010 55 The American Journal of Comparative Law 13.         [ Links ]
12 Bedner "An Elementary Approach to the Rule of Law" 2010 Hague Journal on the Rule of Law 67-68.
13 Macedo "The Princeton Principles on Universal Jurisdiction" in Macedo (eds) Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (2004) 18.
14 The Princeton Principles on Universal Jurisdiction (2001) 2.
15 (11 April 2000) 2000 ICJ.
16 Murungu "Immunity of State Officials and the Prosecution of International Crimes" in Murungu and Japhet (eds) Prosecuting International Crimes in Africa (2011) 56.
17 Amnesty International "DRC: Neglected Congolese Victims Deserve Justice Now" (2019) https://www.amnestyusa.org/reports/drc-neglected-congolese-victims-deserve-justice-now/2/ (accessed 2019-03-30).
18 Murungu in Murungu and Japhet (eds) Prosecuting International Crimes in Africa 58.
19 Amnesty International "The Democratic Republic of Congo (DRC)" http://demandjusticenow.org/drc/ (accessed 2018-11-03).
20 Murungu in Murungu and Japhet (eds) Prosecuting International Crimes in Africa 58.
21 Ibid.
22 Olugbuo "Positive Complementarity and the Fight Against Impunity in Africa" in Murungu and Biergon (eds) Prosecution of International Crimes in Africa (2011) 259.
23 Can also be cited as Military Prosecutor v Eliwo Ngoy & Ors RP 084/2006 12 April 2006.
24 Olugbuo in Murungu and Biergon (eds) Prosecution of International Crimes in Africa 260.
25 Imeodemhe The Complementarity Regime of the International Criminal Court: National Implementation in Africa (2017) 97.         [ Links ]
26 The global agreement was so called because the Congolese war has been termed by commentators as "Africa's world war". Many African countries were involved in the war, including, among others, Burundi, Rwanda, Uganda and Zimbabwe.
27 Amnesty International http://demandjusticenow.org/drc/.
28 Art 215 of the Constitution of the Democratic Republic of Congo 2006.
29 Murungu in Murungu and Japhet (eds) Prosecuting International Crimes in Africa 59.
30 Ibid.
31 Materu The Post-Election Violence in Kenya: Domestic and International Legal Responses (2015) 15.
32 Ibid.
33 Nicholas The International Criminal Court and the End of Impunity in Kenya (2014) 47.
34 International Centre for Transitional Justice "The Kenyan Commission of Inquiry of the Post-Election Violence" (2008) https://www.ictj.org/sites/default/files/ICTJ-Kenya-Dialogue-Inquiry-2008-English.pdf (accessed 2018-11-03) 1.
35 International Centre for Transitional Justice "Prosecuting International and Other Serious Crimes in Kenya" (April 2013) https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-Prosecutions-2013.pdf (accessed 2018-11-03) 1.
36 Pedritti Immunity of Heads of State and State Officials for International Crimes (2014) 261.
37 Ibid.
38 Pedritti Immunity of Heads of State 262.
39 Ibid.
40 International Centre for Transitional Justice https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-Prosecutions-2013. pdf 2.
41 Ibid.
42 Materu The Post-Election Violence in Kenya 94.
43 Novak The International Criminal Court: An Introduction (2015) 80.
44 Ibid.
45 Kenya for Peace with Truth and Justice "An Option for Justice? The International Crimes Division of the High Court of Kenya" (2014) http://kptj.africog.org/wp-content/uploads/2014/08/A_Real_Option_for_Justice_The_International_Crimes_Division.pdf (accessed 2018-11-03) 9.
46 International Centre for Transitional Justice https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-Prosecutions-2013.pdf 2.
47 Gentile "Understanding the International Criminal Court" in Plessis (eds) African Guide to International Criminal Justice (2008) 113.
48 Lattanzi "The International Criminal Court and National Jurisdictions" in Politi and Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity (2001) 80.
49 Gentile in Plessis (eds) African Guide to International Criminal Justice 100.
50 Lattanzi in Politi and Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity 180.
51 Ibid.
52 Lattanzi in Politi and Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity 181.
53 Ibid.
54 Gentile in Plessis (eds) African Guide to International Criminal Justice 101.
55 Security Council "Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court" (31 March 2005) http://www.un.org/press/en/2005/sc8351.doc.htm (accessed 2018-11-03).
56 Bedner 2010 Hague Journal on the Rule of Law 67-68.
57 Lesirela Providing for the Independence of the Judiciary in Africa: A Quest for the Protection of Human Rights (LLM mini-dissertation) 2003 1.         [ Links ]
58 Anti-Corruption Resources Centre "Overview of Corruption in the Democratic Republic of Congo" (October 2010) http://www.u4.no/publications/overview-of-corruption-and-anti-corruption-in-the-drc/ (accessed 2018-11-03).
59 Humanitarian News and Analysis "DRC: Judges Suspend Their Two Month Strike" http://www.irinnews.org/report/47909/drc-judges-suspend-their-two-month-strike (accessed 2018-11-03).
60 Ibid.
61 Rugege "Judicial Independence in Rwanda" 2006 424 Global Business and Development 533
62 Art 149(7) DRC Constitution states "The judicial power has a budget drafted by the Superior Council of the Magistrature and transmitted to the Government to be included in the general budget of the State".
63 APS "Le salaire des hauts magistrats porté á 5 millions par l'allocation d'une indemnité différentielle (ministre)" The salary of senior magistrates increased to 5 million by the allocation of a differential allowance (minister) 21 December 2011 http://www.seneweb.com/news/Afrique/le-salaire-des-hauts-magistrats-porte-a-5-millions-par-l-rsquo-allocation-d-rsquo-une-indemnite-differentielle-ministre_n_56162.html (accessed 2018-10-19).
64 York "Democratic Republic of Congo Teeters on Edge of 'Catastrophe'" (04 June 2017) https://beta.theglobeandmail.com/news/world/democratic-republic-of-congo-teeters-on-edge-ofcatastrophe/article35200017/?ref=http://www.theglobeandmail.com & (accessed 2017-10-11).
65 Ibid.
66 Ibid.
67 Ibid.
68 Art 160(3) of the Constitution of Kenya 2010.
69 Osiro "Corruption in Kenya Supreme Court Judges Accused of Accepting Millions in Bribes" https://www.huffingtonpost.com/washington-osiro/corruption-in-kenya-supreme-court_b_9154580.html (accessed 2018-10-17).
70 Ibid.
71 Ibid.
72 Gitonga "There is Corruption in the Judiciary, says Chief Justice David Maraga" (21 October 2016) https://www.standardmedia.co.ke/article/2000220603/there-is-corruption-in-the-judiciary-says-chief-justice-david-maraga (accessed 2018-10-17).
73 Chengeta "Politics, Populism and the Law: Who Really Speaks for Kenyans?" (1 October 2017) https://www.standardmedia.co.ke/article/2001256132/politics-populism-and-the-law-who-really-speaks-for-kenyans (accessed 2017-10-17).
74 Art 94 states: "(1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. (2) Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty." Art 129 states: "(1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution. (2) Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit."
75 Art 166 states: "(1) The President shall appoint- (a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and (b) all other judges, in accordance with the recommendation of the Judicial Service Commission."
76 Chengeta https://www.standardmedia.co.ke/article/2001256132/politics-populism-and-the-law-who-really-speaks-for-kenyans.
77 Ibid.
78 Art 149(1) of the Constitution of the Democratic Republic of Congo 2006 states: "The judicial power is independent of the Legislative Power and of the Executive Power".
79 Art 151(1) and (2) of the DRC Constitution states: "The Executive power may neither give orders to a judge in the exercise of his jurisdiction, nor decide on disputes, nor obstruct the course of justice, nor oppose the execution of a decision of justice. The legislative power may not decide on jurisdictional disputes, or modify a decision of justice, nor oppose its execution".
80 The Open Society Initiative of Southern Africa and AfriMAP "Democratic Republic of Congo Military Justice and Human Rights: An Urgent Need to Complete Reforms" (2009) http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf (accessed 2018-11-03) 7.
81 The Open Society Initiative of Southern Africa and AfriMAP http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf 12.
82 The Open Society Initiative of Southern Africa and AfriMAP http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf 7.
83 Refworld "Attack on Justice: Democratic Republic of Congo" (2 April 2003) www.refworld.org/pdfid/48abdd680.pdf (accessed 2018-11-03).
84 Art 161(1) states: "In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority."
85 BBC "Maraga Hits Back at 'Threats' over Kenya Election Re-Run" (19 September 2017) http://www.bbc.com/news/world-africa-41322927 (accessed 2017-10-19).
86 Muthoni "Maraga Accuses the Executive and Parliament of Attempting to Control the Judiciary" (20 September 2017) https://www.standardmedia.co.ke/article/2001255034/maraga-accuses-the-executive-and-parliament-of-attempting-to-control-the-judiciary (accessed 2017-10-19).
87 Ibid.
88 The Cable "Falana Asks UN to Investigate Attacks on Judges in Kenya" (26 September 2017) https://www.thecable.ng/falana-asks-un-investigate-attacks-kenyan-judges (accessed 2018-10-19).
89 Wanki "Exploring the Interrelationship between the Responsibility to Protect and the Principle of Complementarity in Africa: Conceptual Ambiguities and Contestable Assumptions" 2018 4 Journal of South African Law 822.         [ Links ]
90 The Prosecutor v. Omar Hassan Ahmad Al Bashir ICC-02/05-01 /09.
91 Caplan "Bush and Blair Carry on Unpunished for the Crimes of the Iraq War" (2018) The Globe and Mail https://www.theglobeandmail.com/news/politics/bush-and-blair-carry-on-unpunished-for-the-crimes-of-the-iraq-war/article31118851/ (accessed 2019-04-10).