Navi Pillay skeptical about Zuma’s international legal efforts

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Former UN High Commissioner for Human Rights has expressed skepticism about pending international efforts announced by the legal counsel to former President Jacob Zuma.

Advocate Dali Mpofu announced their intention to approach the UN Human Rights Committee after the MK Party leader was disqualified from serving in Parliament for five years following his conviction and sentencing for contempt of court in 2021.

Navi Pillay, who served as High Commissioner from 2008 to 2014 and as a judge of both the International Criminal Court and the High Court in South Africa, did concede that Zuma might have a prima facie case as it pertained to certain rights contained in the International Covenant on Civil and Political Rights but that it would be up to the independent experts sitting on the Committee to evaluate his complaint.

The UN Human Rights Committee is not a Court of law but a grouping of independent experts that monitors implementation of the Covenant to which South Africa acceded to in 1998.

“This complaint on behalf of Zuma can be made and received by the Human Rights Committee. The complaints procedure is usually, they submit the complaint to the committee and the committee sends that complaint to the state party. That’s the first thing they do. They send it to the state party and the state party has like six months to reply and say what it has done about the so-called abuse or complaint. So, there alone, it’s about six months to reply. And when the committee has received all the complaints, and the complaints must be specifically addressed to some articles such as freedom of speech or right to vote. So, once they list that, that’s one criterion. The other criteria is that the complainant must have exhausted all remedies. So, in this case there’s been an adjudication by the highest court in the land in South Africa. So, that item has been that condition has been fulfilled of exhausting all your remedies nationally before you approach the international body,” says Pillay.

This was former President Zuma’s legal counsel Advocate Dali Mpofu last week.

“That committee was actually, just by coincidence, dealt with a similar case, which, those who are in the Constitutional Court would remember, we cited in court, it’s a case of a gentleman called Dissanayake who, just by coincidence, was denied in Sri Lanka the opportunity to stand as a Member of Parliament on the basis of guess what -contempt of court. And so, it’s a case that’s actually on, on all fours. And that court, the United Nations, Human Rights Committee, found that the government of the state of Sri Lanka was wrong to deny Mr Dissanayake his rights to be a Member of Parliament on the basis of having been convicted for contempt of court. And it found that, that is a violation of articles nine, 14 and 25 of the Charter.”

Mpofu refers to a July 2008 decision by the UN Human Rights Committee on a complaint filed by S.B. Dissanayake, an elected Member of Parliament in Sri Lanka who complained that the imposition of two years rigorous imprisonment for contempt of court by the Sri Lankan Supreme Court violated his individual rights as protected under the Covenant.

Mpofu says the Committee found violations of articles 9, 14 and 25 of the Covenant that could inform any future application on behalf of former President Zuma.

“Article 9 subsection 1 says no-one shall be subjected to arbitrary arrest or detention and that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as established by law; or Article 14 subsection 1: all persons shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal, recalling failed efforts to have six ConCourt judges recuse themselves in Zuma’s IEC eligibility case; Subsection 5,  everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law; or Article 25 (A), every citizen shall have the right and the opportunity to take part in the conduct of public affairs directly or through freely chosen representatives or (B) to vote and to be elected at genuine periodic elections, guaranteeing the free expression of the will of the electors,” Mpofu explains.

In the Dissanayake case, the Committee found that his imprisonment was arbitrary and in violation of Article 9 and that the sentence imposed was disproportionate and that the prohibition on his right to be elected or to vote for a period of seven years after the conviction was unreasonable and a violation of Article 25 of the convention, elements the MK Party might seek to pursue in their filings before the committee, even though section 47 (1) (e) of the South Africa’s constitution precludes anyone convicted and sentenced to more than 12 months’ imprisonment without the option of a fine of serving in the National Assembly for five years after the sentence had been completed, a criteria upheld by South Africa’s Apex Court in May.

Pillay warned that each case was different and the Committee would have to examine the facts, referring to a decision in 2022 when the Committee also found against the Spanish government for violating the political rights of four Catalan separatist leaders by suspending them from public duties prior to their convictions.

“In the Spanish case, they looked at the law and found there were problems in whether they could and individually analyse the proportionality of the measure. You and I can’t say that at this moment is the five-year suspension proportionate to that offense. So, that’s something that South Africa will have to explain and defend. And so, the existing law as our existing law, maybe it may be argued, prevents an analysis of that measure and whether it meets the requirements of reasonableness and objectivity, this would require a closer look at the facts in the Zuma situation. And depending on the Constitutional Court’s process and decision, Zuma may also bring a case on the violation of his right to a fair trial that falls under Article 14. Now, even if South Africa’s prohibition on Zuma is foreseeable and not arbitrary, the restriction may still be proportionate to the offense.”

Pillay also explained how any possible remedial action could unfold, if at all.

“The Human Rights Committee, which is not a court, but whose jurisdiction South Africa has accepted. So, the first thing they are obliged to reply to that complaint. They look at violations and see how best to address that in the future. They are interested in the laws and systems that are in place and whether they accord with human rights standards. That’s the job of that court. They may order remedies, or they may ask to state, how are you going to remedy the suffering incurred on this complainant as a result of that noncompliance with the human rights standard and they may leave it to the state to offer that, they wouldn’t impose that on them.”

The UN Human Rights Committee processes are painstakingly slow and it could be several years before any decision is handed down, noting that the complaint by Zuma’s legal team has yet to be submitted.