Post by cjm on Aug 16, 2015 17:14:33 GMT
Creating foreign enclaves in SA
President Zuma claims that Al Bashir was technically in territory under the control of the AU.
maroelamedia.co.za/blog/nuus/sa-nuus/zuma-se-al-bashir-was-tegnies-nie-in-sa/
So far as I know, this is the first time in the sequence of events that this angle has been
expressly claimed. It appeared though in muted suggestion in the court papers when the
government opposed the arrest of Al Bashir. It does not seem to have been argued during
the application. The following are extracts from the judgement:
13. The facts giving rise to the current proceedings are in large measure found in
the answering affidavit deposed to by the Director-General: Justice and Constitutional
Development. She states that on or about January 2015, the Republic of South
Africa agreed to host an African Union ("AU") Summit during June 2015; that in
order to facilitate the hosting of the AU Summit, the Republic of South Africa was
required to enter into an agreement with the Commission of the AU, specifically
relating to the material and technical organization of the meetings ("the host
agreement") which was concluded on or about 4 June 2015.
…
The Director General points out that although the preamble to the
host agreement contains the phrase "at the invitation of the Government",
the Republic of South Africa was in no manner whatsoever involved or responsible
for extending invitations to any or all of the delegates or attendees of the AU
Summit; that the preamble to the host agreement clearly provides that the
Commission of the AU is charged with the exclusive responsibility of organising,
conducting and managing the meetings. The Director General states in this regard
that the Republic of South Africa merely agreed to host the AU Summit, whilst the
Commission of the AU was solely responsible for inviting all the delegates and
attendees of the AU Summit.
15. The Director General proceeds to make out the case that Article VIII of the host
agreement specifically provides for privileges and immunities; that Clause 1 of Article
VIII records that the Republic of South Africa shall accord the Members of the
Commission and Staff Members, the delegates and other representatives of
Inter-Governmental Organisations attending the Meetings, the privileges and
immunities set forth in Section C and D, Articles V and VI of the General Convention
on the Privileges and Immunities of the Organisation of African Unity ("the OAU
Convention").
16.The Director General then refers to Section C, Article V (1) (a) and (g) of the
OAU Convention, which reads:
"1. Representatives of Member States to the principal and subsidiary institutions,
as well as to the Specialized Commission of the Organization of African Unity, and
to conferences convened by the Organization, shall, while exercising their functions
and during their travel to and from the place of meetings, be accorded the following
privileges and immunities:
(a) Immunity from personal arrest or detention and from any official interrogation
as well as from inspection or seizure of the personal baggage;
.....
(g) Such other privileges, immunities and facilities not inconsistent with the foregoing
as diplomatic envoys enjoy, except that they shall have no right to claim exemption
from customs duties on goods imported (otherwise than as part of the personal
baggage) or from excise duties or sales taxes."
It is clear that the Constitution and SA law apply to the entire Republic.
For example, in the Constitution one finds the following (emphasis added):
2. Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
…
The powers and duties of the executive similarly apply to the entire Republic:
83. The President
The President
a. is the Head of State and head of the national executive;
b. must uphold, defend and respect the Constitution as the supreme law of
the Republic; and
c. promotes the unity of the nation and that which will advance the Republic.
84. Powers and functions of President
1. The President has the powers entrusted by the Constitution and legislation,
including those necessary to perform the functions of Head of State and head
of the national executive.
It is clear that the constitution covers the entire Republic. Within that Republic,
The Rome Statute is domestic legislation flowing from a treaty signed and legislated
in terms of the constitution.
Similarly, the jurisdiction of the courts applies to the entire Republic:
165. Judicial authority
1. The judicial authority of the Republic is vested in the courts.
2. The courts are independent and subject only to the Constitution
and the law, which they must apply impartially and without fear, favour or prejudice.
3. No person or organ of state may interfere with the functioning of the courts.
4. Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality, dignity, accessibility
and effectiveness of the courts.
5. An order or decision issued by a court binds all persons to whom and organs of
state to which it applies.
The government has very little leeway once it receives a request or warrant from the ICC. Once a few conditions in the Implementation Act are met, its obligations to respond are cast in iron. This is the situation even without an additional court order as in the present debacle.
Accordingly, the government not only has the power to arrest, but in fact in terms at least of the Implementation Act has the duty to act.
The general theoretical framework is aptly explained here:
The law not only empowers administrative authorities; it also
places them under duties to act. As such the law plays a dual role.
No matter what powers are conferred upon the administration, these
powers are always coupled with at least one duty, though the extent
of this duty may vary. Where the power to act is discretionary, the
duty might be a weak one, requiring only that the person vested with
the power should consider whether or not to exercise it. For example,
a minister might have the power to grant drought relief when, in his
discretion, he believes this to be necessary. He has a duty to exercise
this discretion—he cannot simply decide to ignore requests that he
do so—but he has no duty to grant drought relief unless this is
prescribed by the empowering legislation. On the other hand, a
discretionary power may be coupled with a strong duty to decide in
a certain way, and a non—discretionary power is always coupled with a
duty to act in a certain way. Thus a licensing officer might be under
a duty to exercise his power by issuing a licence when an application
fulfils all the requirements stipulated by the empowering
legislation.
Baxter: Administrative Law, Juta (1984), pp76-77
Elaborating on the duty of the public administration to exercise a
bestowed power is the following:
‘Public’ administration is the concern of administrative law, yet this
presents the problem of distinguishing ‘public’ authorities from ‘private’
institutions.
…
It is possible, however, to attain some degree of clarity as to the
utility and importance of the distinction by asking ourselves why it is
drawn in the first place. The answer must surely be that ‘public’
authorities are to be treated in a manner different from ‘private’
authorities. This was most aptly expressed by Schreiner JA in his
dissent in Mustapha v Receiver ofRevenue, Lichtenburg
‘In exercising the power . . . the Minister acts as a state official and not as a
private owner, who need listen to no representations and is entitled to act
as arbitrarily as he pleases so long as he breaks no contract. For no reason
or the worst of reasons the private owner can exclude whom he wills from
his property and eject anyone to whom he has given merely precarious
permission to be there. But the Minister has no such free hand. He
receives his powers from the statute alone and can only act within its
limitations, express and implied. If the exercise of his powers under the
sub—section is challenged the Courts must interpret the provision,
including its implications and any lawfully made regulations, in order to
decide whether the powers have been duly exercised.’
Baxter: Administrative Law, Juta (1984), p99
The relevant authority has to exercise the power (in this case, to arrest), if all
conditions are met. He cannot leave it to another body to exercise that power or
(as in this case) contract with a foreign organisation not to exercise that power.
The general situation is well expressed here:
4. An authority cannot validly bargain away, or otherwise undertake not
to exercise, powers vested in it for the purpose of fulfilling an important
public purpose...In matters of national policy, the Crown cannot fetter its
own freedom to act for the public good.
De Smith: Constitutional and Administrative Law, Penguin (1973), 2nd Edition,
p589
If course, if the legislation or constitution so provides, powers can be delegated or
not exercised. There is however a presumption against the delegation of powers
bestowed on the government (see Baxter op cit pp432-434). There also is a
presumption against the interference by government with the judiciary and
its jurisdiction:
(b) ’n Administratiewe orgaan mag hom nie met die regspraak en
jurisdiksie van die howe bemoei nie.
Wiechers: Administratiefreg, Butterworths (1973), pp200-201
By pretending to transfer and abdicate its powers over the AU meeting, in effect the
government appears to try to limit the jurisdiction of the courts over the activities of the
AU in SA.
To conclude: The government cannot agree to limit its powers of arrest or oust the
jurisdiction of the courts over parts of SA.
See also these links for other aspects:
theswitch.boards.net/thread/1890/legal-considerations-al-bashir-case
theswitch.boards.net/thread/1794/omar-planning-leave-tonight
President Zuma claims that Al Bashir was technically in territory under the control of the AU.
maroelamedia.co.za/blog/nuus/sa-nuus/zuma-se-al-bashir-was-tegnies-nie-in-sa/
So far as I know, this is the first time in the sequence of events that this angle has been
expressly claimed. It appeared though in muted suggestion in the court papers when the
government opposed the arrest of Al Bashir. It does not seem to have been argued during
the application. The following are extracts from the judgement:
13. The facts giving rise to the current proceedings are in large measure found in
the answering affidavit deposed to by the Director-General: Justice and Constitutional
Development. She states that on or about January 2015, the Republic of South
Africa agreed to host an African Union ("AU") Summit during June 2015; that in
order to facilitate the hosting of the AU Summit, the Republic of South Africa was
required to enter into an agreement with the Commission of the AU, specifically
relating to the material and technical organization of the meetings ("the host
agreement") which was concluded on or about 4 June 2015.
…
The Director General points out that although the preamble to the
host agreement contains the phrase "at the invitation of the Government",
the Republic of South Africa was in no manner whatsoever involved or responsible
for extending invitations to any or all of the delegates or attendees of the AU
Summit; that the preamble to the host agreement clearly provides that the
Commission of the AU is charged with the exclusive responsibility of organising,
conducting and managing the meetings. The Director General states in this regard
that the Republic of South Africa merely agreed to host the AU Summit, whilst the
Commission of the AU was solely responsible for inviting all the delegates and
attendees of the AU Summit.
15. The Director General proceeds to make out the case that Article VIII of the host
agreement specifically provides for privileges and immunities; that Clause 1 of Article
VIII records that the Republic of South Africa shall accord the Members of the
Commission and Staff Members, the delegates and other representatives of
Inter-Governmental Organisations attending the Meetings, the privileges and
immunities set forth in Section C and D, Articles V and VI of the General Convention
on the Privileges and Immunities of the Organisation of African Unity ("the OAU
Convention").
16.The Director General then refers to Section C, Article V (1) (a) and (g) of the
OAU Convention, which reads:
"1. Representatives of Member States to the principal and subsidiary institutions,
as well as to the Specialized Commission of the Organization of African Unity, and
to conferences convened by the Organization, shall, while exercising their functions
and during their travel to and from the place of meetings, be accorded the following
privileges and immunities:
(a) Immunity from personal arrest or detention and from any official interrogation
as well as from inspection or seizure of the personal baggage;
.....
(g) Such other privileges, immunities and facilities not inconsistent with the foregoing
as diplomatic envoys enjoy, except that they shall have no right to claim exemption
from customs duties on goods imported (otherwise than as part of the personal
baggage) or from excise duties or sales taxes."
It is clear that the Constitution and SA law apply to the entire Republic.
For example, in the Constitution one finds the following (emphasis added):
2. Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
…
The powers and duties of the executive similarly apply to the entire Republic:
83. The President
The President
a. is the Head of State and head of the national executive;
b. must uphold, defend and respect the Constitution as the supreme law of
the Republic; and
c. promotes the unity of the nation and that which will advance the Republic.
84. Powers and functions of President
1. The President has the powers entrusted by the Constitution and legislation,
including those necessary to perform the functions of Head of State and head
of the national executive.
It is clear that the constitution covers the entire Republic. Within that Republic,
The Rome Statute is domestic legislation flowing from a treaty signed and legislated
in terms of the constitution.
Similarly, the jurisdiction of the courts applies to the entire Republic:
165. Judicial authority
1. The judicial authority of the Republic is vested in the courts.
2. The courts are independent and subject only to the Constitution
and the law, which they must apply impartially and without fear, favour or prejudice.
3. No person or organ of state may interfere with the functioning of the courts.
4. Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality, dignity, accessibility
and effectiveness of the courts.
5. An order or decision issued by a court binds all persons to whom and organs of
state to which it applies.
The government has very little leeway once it receives a request or warrant from the ICC. Once a few conditions in the Implementation Act are met, its obligations to respond are cast in iron. This is the situation even without an additional court order as in the present debacle.
Accordingly, the government not only has the power to arrest, but in fact in terms at least of the Implementation Act has the duty to act.
The general theoretical framework is aptly explained here:
The law not only empowers administrative authorities; it also
places them under duties to act. As such the law plays a dual role.
No matter what powers are conferred upon the administration, these
powers are always coupled with at least one duty, though the extent
of this duty may vary. Where the power to act is discretionary, the
duty might be a weak one, requiring only that the person vested with
the power should consider whether or not to exercise it. For example,
a minister might have the power to grant drought relief when, in his
discretion, he believes this to be necessary. He has a duty to exercise
this discretion—he cannot simply decide to ignore requests that he
do so—but he has no duty to grant drought relief unless this is
prescribed by the empowering legislation. On the other hand, a
discretionary power may be coupled with a strong duty to decide in
a certain way, and a non—discretionary power is always coupled with a
duty to act in a certain way. Thus a licensing officer might be under
a duty to exercise his power by issuing a licence when an application
fulfils all the requirements stipulated by the empowering
legislation.
Baxter: Administrative Law, Juta (1984), pp76-77
Elaborating on the duty of the public administration to exercise a
bestowed power is the following:
‘Public’ administration is the concern of administrative law, yet this
presents the problem of distinguishing ‘public’ authorities from ‘private’
institutions.
…
It is possible, however, to attain some degree of clarity as to the
utility and importance of the distinction by asking ourselves why it is
drawn in the first place. The answer must surely be that ‘public’
authorities are to be treated in a manner different from ‘private’
authorities. This was most aptly expressed by Schreiner JA in his
dissent in Mustapha v Receiver ofRevenue, Lichtenburg
‘In exercising the power . . . the Minister acts as a state official and not as a
private owner, who need listen to no representations and is entitled to act
as arbitrarily as he pleases so long as he breaks no contract. For no reason
or the worst of reasons the private owner can exclude whom he wills from
his property and eject anyone to whom he has given merely precarious
permission to be there. But the Minister has no such free hand. He
receives his powers from the statute alone and can only act within its
limitations, express and implied. If the exercise of his powers under the
sub—section is challenged the Courts must interpret the provision,
including its implications and any lawfully made regulations, in order to
decide whether the powers have been duly exercised.’
Baxter: Administrative Law, Juta (1984), p99
The relevant authority has to exercise the power (in this case, to arrest), if all
conditions are met. He cannot leave it to another body to exercise that power or
(as in this case) contract with a foreign organisation not to exercise that power.
The general situation is well expressed here:
4. An authority cannot validly bargain away, or otherwise undertake not
to exercise, powers vested in it for the purpose of fulfilling an important
public purpose...In matters of national policy, the Crown cannot fetter its
own freedom to act for the public good.
De Smith: Constitutional and Administrative Law, Penguin (1973), 2nd Edition,
p589
If course, if the legislation or constitution so provides, powers can be delegated or
not exercised. There is however a presumption against the delegation of powers
bestowed on the government (see Baxter op cit pp432-434). There also is a
presumption against the interference by government with the judiciary and
its jurisdiction:
(b) ’n Administratiewe orgaan mag hom nie met die regspraak en
jurisdiksie van die howe bemoei nie.
Wiechers: Administratiefreg, Butterworths (1973), pp200-201
By pretending to transfer and abdicate its powers over the AU meeting, in effect the
government appears to try to limit the jurisdiction of the courts over the activities of the
AU in SA.
To conclude: The government cannot agree to limit its powers of arrest or oust the
jurisdiction of the courts over parts of SA.
See also these links for other aspects:
theswitch.boards.net/thread/1890/legal-considerations-al-bashir-case
theswitch.boards.net/thread/1794/omar-planning-leave-tonight
