Cassel and the Court

The African National Congress finds itself in 'proposing policies' mode because of its forthcoming National General Council and the 53^rd National Conference later in the year.

One of the suggestions made by Premier Cassel Mathale MPL, at the Limpopo Provincial General Council, was that South Africa might do well to withdraw its membership from the International Criminal Court (ICC).

In his address, Premier Mathale states in particular: “…The fact that President Al Bashir is not welcome in our countries, based on our membership to [sic] the International Criminal Court and the selective approach of the Court to issues, gives us solid reasons to review our subscription to the Court.”

As his address points out, this particular instance, of  the first sitting head of state to be indicted by the court, President Omar al-Bashir of Sudan, does have the possibility of dividing, if it has not already, the African continent. Malawi has regrettably cancelled its hosting of the African Union (AU) Summit in July because of the insistence of the AU Commission on the presence of President al-Bashir at the Summit. Not to contravene international law (and offend donors!), Malawi was placed in a tight spot.

South Africa would certainly not be the first country to ponder this question of withdrawing. In considering its obligations towards the court, on the one hand, and its own process of national reconciliation, on the other, Kenya has also proposed withdrawing its membership of the court. Libya too is in the process of negotiating with the court on whether it should hand over Saif Al-Islam Gaddafi or have a trial for him at home. Should the court refuse and insist he be tried in The Hague, it will be interesting to see Libya’s reaction to this. Yet these cases, Malawi, Kenya, Libya and even now South Africa, are steeped in political rather than legal questions.

The indictments or trials of Laurent Gbagbo, Joseph Kony, Jean-Pierre Bemba Gombo, and even Charles Taylor, among others, could be argued to be political questions rather than legal ones. The fact that the overwhelming majority of those indicted by the court are Africans points to a political challenge. Undoubtedly, because the African continent is the region with the most members of the Statute of Rome, the founding charter of the court, it lends itself to this political anomaly. Needless to mention, that the ICC is, strictly speaking, not meant to evaluate or handle cases of its own volition but that it is requested to investigate atrocities and often those who request are themselves not signatories of the Statute; this in itself is a political power play as well. Fifteen cases, in seven situations, all in Africa, indeed Premier Cassel Mathale has reason to be concerned.

Somewhat aware of these political concerns, it seemed the ICC did well in appointing a female African as the lead prosecutor. But the reality is that on the one hand this does not necessarily mean that the court will look more towards the West for possible war crimes prosecutions nor does her appointment mean that ‘international justice’ will be viewed more fairly.

When looking at the ‘broader political picture’, two considerations could be made. Firstly, we must be able to propose a justice system, especially within a post-conflict scenario, which is much more based on restorative (and by extension redistributive) justice rather than retributive justice. Retributive justice is based on the axiom of ‘might is right’ (at the time) and this does not necessarily mean bringing about a process of stability and reconciliation. South Africa is a good example of restorative justice, through its Truth and Reconciliation Commission, though it has not gone far enough in its redistributive justice program.

In Libya, Cote d’Ivoire, Sudan and South Sudan as well as Egypt, to mention but a few examples, a process of restorative justice, where opponents sit down and talk, negotiate the future together and navigate the sensitivities of nation building side by side, is important. Already reports are in that while Gbagbo sits in The Hague, his supporters are planning an offensive. Courts, and legal processes, don’t necessarily bring about restorative justice nor do they bring about nation building.

Secondly, besides the ICC, ‘special courts’ have also been set up by the United Nations and the host country, where the atrocities have taken place. We have seen this in the instance of the Sierre Leone, Rwanda, Lebanon and Bosnia, among others, where a court is established by the UN and the country involved. This allows for the country itself to use the process as a way to ‘end that chapter’ in the history of that particular country/region. As Libya correctly argues, trying Libyans in some distant place in The Hague will not affect the country in the same manner as it would if those same people were tried at home.  

At the same time, the idea has emerged that Africa itself invest in the possibility of establishing its own court. This too strengthens the idea of ‘localising’ justice and allowing for people to see justice, albeit retributive justice, take place. Again, it gives flesh to ‘African solutions for African challenges’.

Those accused of war crimes and/or crimes against humanity were often involved in political processes and/or political situations. More than anything, these are ultimately political crimes for we have yet to see the court try international bankers, human traffickers or drug tycoons. Maybe this is because our international law is not yet that developed. The people, accused by the court, have emerged from political conditions and their indictments have political implications.

Politically it is therefore an important consideration for Africa, how the continent responds to the court’s decisions and the African Union would do well to discuss it; of course, if it can offer member states an alternative it would be even better. Premier Mathale is therefore wise to bring this matter up for discussion in South Africa.

ANC Western Cape: Quo vadis?

Deputy Minister and Member of Parliament, Marius Fransman’s, address at the African National Congress’ (ANC) Provincial General Council (PGC) in the Western Cape (WC) makes for good reading if one wishes to understand the state of the ANC, and the organised Left by extension, in the province and their readiness to reclaim this province. 

A few observations are made and these come in no particular order. 

Firstly, on a political note, Fransman does well to acknowledge the gender (though this is not really focussed on in detail), racial and class struggles within the province. Identifying the DA’s tactics of “divide-and-rule” with regards to minorities as well as their reaching the sum of this support is important. He correctly points out that to govern in the other provinces the DA realises that it needs to win over the support of Black Africans in particular. 

One can point to the march to Cosatu’s head-quarters, portraying themselves as a party of Black Africans as part of this strategy to win African support. But how this, reaching out to (poor) Black Africans, will affect their traditional support base of minorities is a weak spot the ANC, particularly in the Western Cape, is yet to exploit. Trollip et ali are not happy with the new crop of amaMazibuko and the ANC does not seem to be pointing this out effectively to minorities. 

At the same time, Fransman and his team should not turn the ‘National Question’ into a racialised one. One cannot use race, as the DA does, to attract minorities. The best way to do this is to use the class struggle and unite (Africans, Coloureds, Indians and even Whites) against those who wish to exploit others in order to selfishly gain profit. It was Karl Marx, after all, who dismissed race as being secondary to the class struggle. It must become a fight between those who live in Constantia and those who live in Ruyterwacht, Bonteheuwel or Khayelistha. But again, the ANC, and Cosatu in particular, must be careful not to alienate ‘lower middle class’ households; i.e. those teachers, nurses, mechanics who are not poor but who have a bond to pay. 

Secondly, on an organisational note, it is one thing to call for unity but another to have separate ‘groups’ pulling in different directions. These are not factions but rather political structures which seem OK but they really are not if one wishes to find strength in unity. While it is useful to have various (good) leaders serving in various positions, it is difficult for the ANC in the province to have one overarching programme. 

For example, recently housing was debated. On a local level, in the City of Cape Town, the ANC seemed to have a (opposition) policy that was different from the (opposition) one that they had at a provincial level; needless to say that the ANC housing policy on a national level is even more different because there it is governing and not in opposition. So the PEC, the Legislature caucus, the City caucus and the other municipal caucuses in the province all seem to be pulling in different directions. 

The reality is that you can only have a united leadership, with a united vision and a united communication strategy to attract voters if the provincial leader of the ANC is also the official leader of the Opposition in the Legislature. If we wish to win the Legislature, which is going to give us the government of the WC, then our concentration and focus should be on strengthening the Legislature, especially the role of the Leader of the Opposition. This is how the ANC will start to communicate its successes nationally and the failures of the DA government in the WC. 

Thirdly, communications, communications and more communications. The DA has been successful, again especially in the WC and among minorities, to communicate that the ANC’s brand is tainted. The DA has been able to paint the ANC as an ogre and can do so by simply pointing nationally and to other provinces. The DA would rather do nothing than get a qualified auditor’s report. When it does get its unqualified report (for doing almost nothing) it gloats. But it does all of this, paint the ANC as corrupt and itself as clean, through communications. 

Fransman alludes to this lack of communications when talking about the “…the inability of the movement to highlight and exploit major failures of governance by the “opposition government’ [sic] in the province…” and at another section, when speaking of the Palestinian cause, he mentions that “…the challenge however is to ensure how we communicate our victories and battles in this regard to our constituents…” And dare I say, it seems to be a huge but necessary challenge for the ANC. 

If the DA has tainted the ANC’s brand on a national level then the advantage for the ANC in the Western Cape is to communicate to people, especially the working class, that the DA at a provincial level hardly has any (real) power to effect programmes and affect lives. The ANC can communicate that it is able to bring about change faster because it governs at a national level as well. It can achieve more through cooperation from national ministers because those ministers are ANC ministers. 

But while this is subtly detected in Fransman’s address, it does have a huge disadvantage as well. Why does he refer to the government in the Western Cape as an “opposition government”? Put differently, the reason why the ANC has not been able to “handle” the WC is precisely because it cannot distinguish between the subtle difference that it is a governing party (nationally) in opposition (provincially)! Again, to use the example of housing: what is the housing policy of the ANC, in opposition(!), in the Western Cape? Not the national housing policy where it is governing. There’s a huge difference between these two types of policies. 

The contents of Fransman’s address with regards to the state, the economy etc all point to a party in power. While one can understand that the role of the PGC is to prepare the ANC in the province for the National General Council (NGC) and the 53rd National Conference, this particular province must know that its work is double precisely because it is a party in opposition. Unless the ANC learns to be a party in opposition it will not be able to say to the people of the Western Cape: “We are the better alternative” because at the moment the only alternative the WC sees is the rest of the country. 

Communications, communications and more communications. Repairing the ANC brand, dealing with the media, internal management of information and the marketing of leaders, these are the pillars of political communication and they are equal in importance. Another example of political communications is that speech writers play a vital role. Fransman’s address is too wordy and could have been cut by half. The average person’s attention span is said to be 7 minutes and one wonders when exactly he lost delegates (and the representatives of the media) present. But again, communicators and speech writers will know what to say, how to say it and when to say it. 

I’ve not been able to get a copy of “People’s Path to Power 2014” and it is premature to predict whether the ANC will win the province or not. However, what is vital in any election is the managing of the ‘swing vote’. Branches, membership and rallies become secondary to the voting margin which lies in voters who are open to be convinced by a political party. In the Western Cape, this margin is great – the majority of voters don’t want to belong to a political party or are not veteran supporters of a particular political party. They wait and want to be enticed. 

To start this enticing, the ANC, in the Western Cape, must concentrate on the class (not race) question, strengthen the support staff of the provincial legislature and communicate, communicate and communicate.