The Jerusalem Post of 24 June 2020 carries a story suggesting that the Chief Justice of South Africa, Chief Justice Mogoeng Mogoeng differs with the official foreign policy stance of the Government of South Africa in the Palestine/Israel situation.
The Jerusalem Post alludes to a statement by the Chief Justice at a webinar that he is bound by the decisions of the government but that as a citizen he has a right to differ with the foreign policy position of South Africa. An excerpt of the webinar confirms the reporting by the Jerusalem Post. In this regard, as an ordinary citizen of South Africa, the Chief Justice has every right to express his views, including his religious views.
As a South African he enjoys fundamental freedoms including the rights to freedom of expression, religious freedom and access to justice. These are rights, by the way, denied by the Government of Israel to Palestinians in the Occupied Territories. As the head of the apex institution that safeguards South Africans access to fundamental rights and freedoms, one would have assumed that the Chief Justice would have made reference to the denial of these rights to Palestinians.
Again, as an ordinary South African, we must respect the right of the Chief Justice not to do so on this occasion.
However, things become a bit more complicated when the media alerts sent out by the Jerusalem Post suggests that the Chief Justice was speaking in his capacity as the Chief Justice sharing a platform with Chief Rabbi Warren Goldstein. The online conversation was billed as ‘Two Chiefs, One Mission’.
In his capacity as the Chief Justice of the Constitutional Court, Chief Justice Mogoeng in the case, ‘Law Society of South Africa v President of South Africa’ (SADC Tribunal Case) correctly, through his reading of the majority judgement reminded South Africans that the South African constitution through the sections 231 – 233 vest responsibility for foreign policy inclusive of negotiating and signing Treaties with the Executive.
Additionally, in this judgement, Chief Justice Mogoeng confirms the sentiment expressed by former Chief Justice Chaskalson in the ‘Kaunda and Others v President of South Africa’ (Kaunda Case) that the judiciary including the Constitutional Court should focus on the Executive’s exercise of public power in the formulating and implementation of foreign policy.
In essence, the judiciary, including the Constitutional Court, should not seek to determine foreign policy, but ensure that foreign policy as conducted by the Executive is in line with the values and principles of the constitution.
Chief Justice Mogoeng penned the majority judgment in the SADC Tribunal Case. Reference is made to the SADC Tribunal Case because it and similar judgments specifically guide a South African foreign policy that is human rights centred and one wherein we need to act constitutionally and also respect international law that is consistent and aligned with our constitution.
The judgement emphasized the important role International Law played in South Africa’s struggle for freedom. Chief Justice Mogoeng found that “Foreign Policy conduct must be congruent with our constitutional values” and that the Bill of Rights is the cornerstone of our democracy and that it binds all arms of the state and is applicable to ALL law. Chief Justice Mogoeng ruled that the state has a constitutional duty to protect, respect, promote and fulfil the Bill of Rights.
The judgment was important as it clarified that this obligation of the Executive is not limited to South Africans. In this regard it is worth citing paragraph 78 of the judgement which reads as follows: “The obligation to respect, protect, promote and fulfil the rights in the Bill of Rights, which includes the right of access to justice, does not only find application at a domestic level. It is inseparable from whatsoever is done in the name of the State, regardless of where and with whom”.
Chief Justice Mogoeng and his colleagues found that the advancement of human rights and freedoms, the rule of law and an accountable democratic government are foundational values of South Africa’s democratic order. The essence of the judgment was that in conducting foreign policy, the Executive must “respect, protect, promote and fulfil the Bill of Rights”
We, therefore, take comfort that the in his role as Chief Justice of the Constitutional Court Chief Justice Mogoeng, on the bench of the Constitutional Court, would support South Africa’s foreign policy stance in relation to the situation in Palestine and Israel.
The International Court of Justice (ICJ) has found that the State of Israel has contravened the various laws of Occupation. In its Wall Opinion, the ICJ unanimously condemned the conduct of the Government of Israel, noting that the Fourth Hague Convention “prohibits not only deportations and forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying power to organize or encourage transfers of parts of its own population into the occupied territory”.
International Law pertaining to ‘laws of responsibility’ places obligations on states not to recognise acts of wrong-doing by other states. This includes provisions in the International Law Commission’s Articles on State Responsibility and the annex to the GA Resolution 56/83 on these matters, entitled ‘Responsibility of States for Internationally Wrongful Acts ‘ (ARISWA).
Article 41 of ARISWA provides that all states shall cooperate to bring to an end through lawful means any serious breach of international laws. Importantly it further provides that no state shall recognise as lawful, situations created through serious breaches of international norms and laws.
The consistent breaches of International law including international human rights laws by the government of Israel clearly indicates that South Africa is acting constitutionally and rationally in adopting a foreign policy stance in the Palestine and Israel situation that seeks to “respect, protect, promote and fulfil” the human rights of Palestinians and to engage diplomatically to encourage Israel to be accountable to international law in the interests of peace, justice and reconciliation in the Middle East.
South Africa’s foreign policy stance is guided by international law with regards to a two-state solution. South Africa was recently joined by the majority of countries in the world, including the European Union in denouncing the intentions of the Government of Israel to annex most of the West Bank in contravention of International Law.
Contrary to his perspectives as an ordinary citizen, the rulings he has made in relation to foreign policy conduct gives us reason to believe that on the bench, Chief Justice Mogoeng will find that our foreign policy stance in Palestine/Israel is just and fair and in line with the values of our constitutional democracy.
* Zane Dangor is Special Adviser to the Minister of International Relations and Cooperation.
** The views expressed here are not necessarily those of IOL.