Op-Ed: Sovereign immunity: Are heads of state immune from criminal prosecution?

PUBLISHED: Wed, 26 Oct 2016 07:59:58 GMT
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There is a widely held view that the obligation of President Jacob Zuma to account for his past criminal misdeeds is restricted to the 783 charges arising from his relationship with Schabir Shaik. No or little account is taken of the misdeeds committed whilst in office as president. The source of this misconception is an apparent belief that the president, as head of state, is protected against liability for such conduct by the doctrine of sovereign immunity.

The doctrine of sovereign immunity (for it is a doctrine and not a rule of law) has a long, bleak provenance. The original state-makers were also the most successful and barbaric international bandits. In his book, Roads from Past to Future, Charles Tilly, the Joseph L. Buttenwieser Professor of Social Science at Columbia University, said this about the early history of state-making: “In times of war, indeed, the managers of full-fledged states often commissioned privateers, hired sometime bandits to raid their enemies and encouraged their regular troops to take booty. In royal service, soldiers and sailors were often expected to provide for themselves by preying on the civilian population: commandeering, raping, looting, taking prizes.”

In time, when state-making became a more respectable activity, those who continued to structure their ambitions upon state power found a very convenient and even seductive attraction in the immunity that the bandits of old had decreed for themselves. This doctrine came to be expressed in the maxim, rex non potest peccare (the king can do no wrong). 

There is both an international and a domestic dimension to the doctrine; the former based upon the quaint principle of international comity, which requires an immunity from prosecution of the head of state under the laws of any foreign jurisdiction. The latter indemnifies the head of state against any criminal prosecution under the laws of the state of the incumbent. Only the latter is relevant for present purposes.

In March 2014, in the wake of the Public Protector’s finding that Zuma had “benefitted unduly” from the Nkandla upgrades, the Democratic Alliance (DA) laid a criminal charge of corruption against the president. Nothing has come of that initiative and, despite the lapse of 30 months, the National Prosecuting Authority (NPA) has issued no statement in connection with this charge.

Does the NPA perhaps take the view that that no prosecution is possible on account of the doctrine of sovereign immunity? Or is there some other undisclosed reason for this inexplicable unresponsiveness? This second possibility can surely now be eliminated. 

On Tuesday, 11 October 2016, simultaneously with the disclosure of the decision to institute a prosecution on charges of fraud against Finance Minister Pravin Gordhan, the national director of the NPA, Shaun Abrahams, assured a national audience that the NPA performs its constitutionally mandated obligations impartially, “without fear, favour or prejudice”. That leaves only the possibility that the NPA is convinced that the president is protected by the doctrine of sovereign immunity.

The question then is whether they are right, or wrong.

If the principle of sovereign immunity from criminal prosecution for the head of state, during the term of office of the incumbent is part of South African law, then director Shaun Abrahams and his team of lawyers have got it right; if not, they are mistaken.

Sovereign immunity, of the kind described, can only apply if the source of the indemnity is to be found within the body of the South African law. The supreme law of South Africa, to which all other law (national or international) must be subordinated, is the Constitution. Section 1 (c) of the founding provisions of the Constitution stipulates that South Africa is a sovereign democratic state founded upon the supremacy of the constitution and the rule of law. 

The remainder of the enquiry would be a relatively simple matter for director Shaun Abrahams and his investigative team to undertake: does the constitution permit of the exceptional treatment of the president for criminal acts committed during his term of office, and if not, might the rule of law create such an indulgence? If the answer to both enquiries results in a negative response then director Shaun Abrams, acting without fear, favour or prejudice, has a simple decision to make.

The constitution creates no such exception. On the contrary, it explicitly stipulates that everyone (and that would include the president) is equal before the law. There is no exception provided for in the constitution.

It is one of the fundamental principles of the rule of law, that everyone is equally subject to the law. This cannot be altered by whim or caprice, or even by legislative enactment, for any such action would itself violate the rule of law, and would therefore be in violation of a founding principle of the constitution. The conclusion therefore is abundantly clear: President Jacob Zuma is subject to precisely the same law as every other citizen of the country. Why then has the NPA been so dilatory in pursuing the DA’s charge of corruption against the president?

The only remaining possibility is that the NPA holds the view that the available evidence will not sustain a conviction on a charge of corruption. Zuma is on record as having proclaimed that he was unaware of the upgrades that were being affected at Nkandla. This assertion is simply incredible; at least it is so in the case of any sentient individual. The idea that Zuma was unaware of the R240 million worth of improvements being undertaken at his traditional homestead can be summarily rejected. In any event Zuma has contradicted himself on this assertion. He has said that he did, in fact, give instructions in connection with the cattle kraal. This could not have happened if he had been unaware of the work being done at the premises.

The conclusion is irresistible: the NPA has no valid reason whatsoever for having failed to initiate a prosecution in connection with the Nkandla upgrades. But there are other implications. Apart from the 783 counts of corruption, which have been languishing for the past 11 years, Zuma is criminally answerable for all the offences committed by him during the course of his administration. This would naturally include the charges relating to the state capture by the Gupta brothers, for it is inconceivable that this could have happened without the active participation of Zuma.

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Author Rex van Schalkwyk is a former judge of the Supreme Court of South Africa and is the Chairman of the Free Market Foundation’s Rule of Law Board of Advisers.The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.

@FMFSouthAfrica