Mbabane: In order for a Head of State to be prosecuted at the International Criminal Court, the state in question has to be a signatory to the Rome statute which is an international treaty that governs the establishment and the operation of the International Criminal Court (ICC).
This is the view of Human Rights lawyer Thulani Maseko in responding to growing calls from some quarters that King Mswati and the Kingdom of Eswatini should be reported to the ICC for human rights violations. Many of these calls are from faceless individuals who are making their demands on social media platforms such as Facebook and Twitter. This follows the fatal shooting of an estimated 70 Emaswati nationals during the political and social uprisings in June by security forces.
Maseko contends that “Eswatini is not a signatory of the Rome statute and as such, it would be very difficult to have it prosecuted at such a forum.”
By definition, the International Criminal Court investigates and, where warranted, tries those with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression. The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.
As a Court of last resort, it seeks to complement, not replace national Courts, it is the world’s first permanent international criminal court.
According to Maseko, “with regards to the shootings that occurred in June embarking on such a process is very complicated because before one even begins on that route there will be a need to collect the evidence. Part of the process requires the case number of each incident of those who were shot, killed, and reported to the police. In essence, the police dockets of the deceased. It is not likely that the police would release such information.”
“The ICC would require such evidence and in order for that to happen there would need to be cooperation with all the relevant organs of state such as the police. They (ICC) would then embark on an investigation themselves. Activists of the Pro-Democracy Movement would really have to apply their minds if they want to proceed along this route.”
Maseko alluded to the fact that one of the options that could be used in order to affect an arrest on the Head of State would be to engage in discourse with a signatory country to the Rome statute towards this end. Through these means, it has been observed that the ICC can reach an individual whose country is not a signatory to the Rome statute such as the attempt with the former President of Sudan Omar-al-Bashir when he attended an African Union Leaders Summit in South Africa in June 2015. On that occasion, Bashir managed to escape after South African leaders were reluctant to affect a court order by a South African Judge preventing al-Bashir from leaving the country. South Africa’s ruling party appeared intent on avoiding a confrontation with other African leaders, who deplore the ICC as a Western, neocolonial instrument.
Nonetheless, the Human Rights Activist believes that the Pro-Democracy Movement is gaining momentum. “If the protest action at the United States Embassy on Friday, during the petition handover is a benchmark, it is clear that the hunger for change is palpable and that the numbers of those who are calling for a peaceful transition to democracy are swelling. It was the first time that we saw such a large number of people at a protest march since the 1995 and 1996 marches that were organized by the Swaziland Federation of Trade Unions (SFTU).”
“The position of dialogue is inevitable among stakeholders. If this does not happen then the language of violence would be the next step and this would be a sad day for Eswatini. If history is anything to go by, peace is better than violence and at the moment we are at the crossroads.”
“We were hoping that the SADC process would be an answer but it is clear that they have failed to provide a solution. This is because the government has undermined and frustrated the SADC team. The SADC team has been frustrated through the narrative that the Eswatini government is peddling that the Tinkhundla system is democratic. This is a false narrative that cannot be sustained.”
Maseko questions the notion that freedom of expression is permitted in Eswatini and says “if people were permitted to express themselves then why did the Acting Prime Minister ban the delivering of petitions. Indeed the consequence of the three Members of Parliament, Mthandeni Dube, Mduduzi Mabuza, and Mduduzi Simelane, saying we can transform the Tinkhundla system by electing our own Prime Minister has landed them in prison. This has been their Cardinal sin. So there are no channels for the people to express themselves.”
Maseko believes that these are some of the issues that can be properly discussed at the negotiation table. He points out that are more Pro-Democracy events that will take place until the end of the year to conscientize all stakeholders about the need to go to the negotiation table.
Drawn for a response on the matter, the Director of Communication at the King’s Office, Percy Simelane said “we elect to keep our cards closer to our chest and not commit prematurely. It is not yet clear how our case is going to be handled. True, we are not signatories to the Rome statute but we are aware that there could be other options to be tried to get to the Head of State.”
“Whatever the case is, it does not change the fact that the King has nothing to do with the daily operations of any of our security services or army. They, therefore, do not have to be ordered by him to go and protect the public from elements who had embarked on acts of terrorism, burning businesses, private homes, vehicles, clinics, and schools. They were also looting shops and manning illegal toll gates where motorists were robbed of their hard-earned cash.”
“This did not call for the King to order interventions it came as a result of the wisdom of the army to save what was left of businesses and private homes. Police have been overwhelmed. We can only hope that the ICC route is not an effort to root out the leadership that has helped develop this country to what it is today and replaces it with liabilities that have no value for the country’s economic evolution.”
In conclusion, Simelane emphasized that “Eswatini has a Constitution to follow for change to happen. It would be folly for Emaswati to replace their Constitution with mob opinion as it were.”