APPROACHING the International Criminal Court (ICC) over the police killing of 34 striking Lonmin miners is an option under consideration by one of the legal teams at the Marikana commission of inquiry.
“It is one of the considerations… The way this happened may well be a crime against humanity,” said attorney Henry Muzi Msimang, who is on the legal team, led by advocate Dali Mpofu, representing the more than 270 Marikana miners initially arrested in the aftermath of the killings. But first the inquiry must take its course, Msimang added.
The ICC was established in 2002 and can prosecute individuals for genocide, crimes against humanity and war crimes. It has been criticisedfor focusing its investigations on Africa.
While former Ivory Coast president Laurent Gbagbo faces charges of crimes against humanity related to election violence that left 3 000 dead, Sudan’s president Omar al-Bashir’s arrest warrant has yet to be executed. And ICC chief prosecutor Fatou Bensouda was in Kenya this week in connection with the court’s investigation of four senior politicians over the election violence in 2007 that killed 1 200.
Constitutional law expert Pierre de Vos said South Africa was a signatory to the ICC and the constitution did not exclude anyone from approaching the international forum, but only after all domestic avenues had been exhausted.
The ICC was cited in Mpofu’s explosive opening statement that featured a series of e-mails between Cyril Ramaphosa, the Shanduka executive chairman and Lonmin non-executive director, and Lonmin chief commercial officer Albert Jamieson.
In them, Ramaphosa described the strike – in which 10 men had already died – as “plainly dastardly criminal acts”.
His conversations with Mineral Resources Minister Susan Shabangu and Police Minister Nathi Mthethwa, as well as proposed contact with ANC secretary-general Gwede Mantashe, were also revealed.
Ramaphosa has offered to testify at the Marikana Commission of Inquiry.
He said: “I believe there are a number of issues relevant to the deliberations of the inquiry on which I may be able to make a contribution.”
However, there are many layers to the question of what led to the police killings on August 16, which the commission of inquiry must unravel.
And Bapo-Ba-Mogale traditional leader Kgosi Bob Mogale brought to the commission at least some of his troubles – those with Lonmin.
He is also embroiled in a dispute over the Bapo-Ba-Mogale traditional leadership, now before the courts, which has led to the appointment of administrators by the North West government.
Public Protector Thuli Madonsela is investigating the so-called D-Account, which holds mining royalties, after meeting the traditional community over its claims the North West government was mismanaging its funds.
The traditional leader’s legal representative, advocate Karabo Bareng Kgoroeadira, on Tuesday told the commission the community had nothing to show for making its land available for mining, “save for traditional land being infested with migrant labourers and job seekers”, yet still lacked basic rights such as water.
The squalor of Nkaneng, the informal settlement which is home to miners from Marikana, and other miners, has been in the spotlight since the massacre.
Trade union federation Cosatu has called for a special commission of inquiry into miners’ living and working conditions. Last week, Cosatu general secretary Zwelinzima Vavi said the finalised terms of reference would be submitted soon to President Jacob Zuma.
Analysts and commentators have also cited high levels of indebtedness among Rustenburg miners, including garnishee orders and the negative impact of the living-out allowance, used to rent cheap shacks to save cash.
The Bapo-Ba-Mogale submission to the Marikana commission of inquiry also highlights tensions triggered by the labour system, in which migrants from the Eastern Cape, particularly Pondoland, Lesotho and Swaziland, hold the most menial jobs, and who have been at the heart of the wildcat strikes in the mining sector.
The National Union of Mineworkers has said these low-grade jobs are held by migrants as locals did not want the back-breaking work.