A former UN High Commissioner for Human Rights has expressed scepticism about future international efforts announced by former President Jacob Zuma's legal adviser.
Lawyer Dali Mpofu announced his intention to lodge a complaint with the UN Human Rights Commission after the MK leader was found guilty of contempt of court in 2021 and disqualified from serving as an MP for five years.
Navi Pillay, who served as high commissioner from 2008 to 2014 and as a judge at the International Criminal Court and the South African High Court, acknowledged that Zuma may have a prima facie case in terms of certain rights contained in the International Covenant on Civil and Political Rights, but said it was up to the independent experts serving on the commission to assess his complaint.
The UN Human Rights Commission is not a court of law but a body of independent experts that monitors the implementation of human rights covenants to which South Africa joined in 1998.
“This complaint on behalf of Mr Zuma can be lodged and received by the Human Rights Commission. The complaint process is normally you lodge a complaint with the commission and the commission sends the complaint to the state party. That's the first thing they do. They send it to the state party and the state party has about six months to reply and say what they have done about the so-called abuses and complaints. So just there, it takes about six months to reply. And when the commission receives all the complaints, the complaint has to specifically address certain provisions such as freedom of speech and the right to vote. So once they list that, that is one criterion. The other criterion is that the complainant has exhausted all remedies. So in this case there was a ruling by the highest court of the country in South Africa. So that item is that the condition of exhausting all remedies domestically before approaching an international organisation has been met,” says Pillay.
This was stated by former President Zuma's legal adviser, Dali Mpofu, last week.
“That committee, coincidentally, was dealing with a similar case. Those of you at the Constitutional Court will remember, we cited that case in court, which coincidentally was the case of a man named Dissanayake who was denied the opportunity to run for parliament in Sri Lanka because he was found to be in contempt of court, of all places. So this is really a case of being surrounded on all sides. And that court, the UN Human Rights Commission, found that the Sri Lankan government was wrong to deny Mr Dissanayake his right to be a member of parliament because he had been found to be in contempt of court. And it found that this was in breach of articles 9, 14 and 25 of the Charter.”
Mpofu was referring to a July 2008 decision by the UN Human Rights Committee on a complaint filed by Sri Lankan elected member of parliament, SB Dissanayake, who argued that the Sri Lankan Supreme Court's decision to impose a two-year prison sentence for contempt of court violated individual rights protected by the International Covenant on Human Rights.
Mpofu said the commission had found breaches of articles 9, 14 and 25 of the Human Rights Code, which he said could serve as a guide for future applications on behalf of former president Zuma.
“Article 9(1) provides that no one shall be arbitrarily arrested or detained or deprived of his liberty except on grounds and in accordance with procedures established by law; or Article 14(1), recalling Zuma's failed attempt to get six judges to step down over the qualifications issue at the International Criminal Court, provides that everyone has the right to a fair and public hearing by a competent, independent and impartial tribunal; Section 5 provides that everyone convicted of a criminal offence has the right to have his conviction and sentence reviewed by a higher tribunal in accordance with law; or Article 25(A) provides that every citizen shall have the right and opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives; or (B) the right and opportunity to vote and be elected in genuine periodic elections which guarantee the free expression of the will of the electorate,” Mpofu explains.
In Dissanayake, the Commission found that his imprisonment was arbitrary and in breach of article 9, the punishment imposed was disproportionate and that his ban on standing for election or voting for seven years after his conviction was unjust and in breach of article 25 of the Convention. While these factors may be sought to be pursued by MK in its submission to the Commission, section 47(1)(e) of the South African Constitution provides that a person sentenced to 12 months or more in prison without the option of a fine cannot serve as a member of Parliament for five years after serving his sentence, a standard upheld by South Africa's Supreme Court in May.
Pillay cautioned that each case is different and the commission must examine the facts, and in a 2022 decision, the commission ruled against the Spanish government for violating their political rights by suspending four Catalan separatist leaders from public office before they were convicted.
“In the Spanish case, after looking at the law, we see that there is a problem with being able to analyse the proportionality of the measure on an individual basis. You and I cannot say at this stage that a five-year suspension is proportionate to the offence. So that is a question that South Africa has to explain and defend. So it could be argued that the current law, our current law, prevents an analysis of the measure and that we need to look more closely at the facts of Zuma's situation to see whether it meets the requirements of reasonableness and objectivity. Also, depending on the procedure and decision of the Constitutional Court, Zuma may have a case for violation of his right to a fair trial falling under Article 14. Even if South Africa's ban against Zuma is not foreseeable and arbitrary, it may be proportionate to the offence.”
Mr Pillay also explained how corrective measures, if any, might be implemented.
“The Human Rights Commission is not a court but South Africa has recognised its jurisdiction, so it is obliged to respond to the complaint in the first place. The Commission will investigate the violation and consider how best to deal with it in future. The Commission is interested in the laws and systems in place and whether they meet human rights standards. That is the job of a court. The Commission may order a remedy or it may ask you to state how you intend to remedy the suffering suffered by this complainant as a result of a failure to meet human rights standards. The Commission may leave that remedy to the state. The Commission cannot impose it on the state.”
The UN Human Rights Commission's process is extremely slow and with a complaint by Zuma's legal team yet to be filed, it could be years before any decision is made.
