Is the Zulu King guilty of inciting crimes against humanity?

2015-04-11 13:37

The Rome Statute, to which South Africa is a party, defines a crime against humanity as a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”.

The Rome Statute Act (South Africa, 2002) defines genocide to include, among other things, killing with intent to destroy, in whole or in part, a national or ethnic group.

On March 20, 2015 the King Goodwill Zwelithini Zulu reportedly told a crowd in Phongolo, KwaZulu-Natal, that foreigners must leave South Africa. Speaking from a prepared speech, the King said he could not longer tolerate the “influx of foreign nationals”. He went on to decree that, “all foreigners [must] pack their bags and leave.”

The King’s reason, apparently, is that foreign nationals are setting up businesses and inconveniencing locals. He made the declaration in the presence of government officials, including the Minister of Police, Nathi Nhleko.

To many Zulus, the King is more than just a relic of the pre-democratic age. He represents a time when the Zulu nation was a cultural and political powerhouse. He is revered not just by traditionalists, but also by Zulu youths.

In 2010 the King revived the cultural practice of circumcision, which was banned by Shaka Zulu. He “decreed” that all Zulu men must get circumcised. I was a 20-year-old law student at the time, and by no definition a traditionalist. However, there was so much pressure around the decree that I booked myself in hospital for the procedure. This is just an example of the King’s power.

The King’s xenophobic (or rather Afriphobic) utterances, therefore, were not just irresponsible and dangerous; in a country with a history of violence against black foreigners, he had effectively condemned them to death.

On Friday, just two weeks after the King’s utterances, bandits in Isiphingo, KwaZulu-Natal, went on a rampage hunting, attacking, lacing and burning foreigners alive. This is more than a mere coincidence. (See here and here.)

The King did not make these prejudicial calls alone. President Jacob Zuma’s son, Edward Zuma, also told News24: “Foreigners needed to leave the country.” Zuma said, “The government needs to clean out everyone that is in the country illegally.”

The Minister of Small Business Development, Lindiwe Zulu, also made a statement along the same lines. She said, “Foreigners need to understand that they are here as a courtesy and our priority is to the people of this country first and foremost.” She insinuated that some of the xenophobic talk raises valid issues because there is “a lot of criminality” associated with foreign nationals.

Crimes against humanity

The utterances of the King fall squarely within the definition of crimes against humanity. Instigating a crime against humanity is, as Advocate Anton Katz noted in his comment on the Rome Act, a punishable offense under domestic (South African) law.

Article 25 of the Statute, now incorporated into our law, imputes individual criminal responsibility on anyone who “Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted” or “In respect of the crime of genocide, directly and publicly incites others to commit genocide”.

The conduct of the King may also fall under the definition of joint criminal enterprise, which was expanded by the ICTY Appeal Chamber in the Radoslav Brdanin decision (2007).

It is clear, too, that the South African government has failed its obligation under international law “to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity”.

The responsibility to protect, according to Muna Ndulo, entails that:

(a) the state should ensure that people under its jurisdiction are not subjected to genocide, war crimes, ethnic cleansing and crimes against humanity; (b) a state should take effective and credible measures to ensure that such things do not happen; and (c) that when they do happen the state should punish those that perpetrate the atrocities and provide reparations to the victims.

We can longer hope that people like King Zulu will adhere to the spirit of our Constitution by respecting human rights and protecting dignity. We can no longer hope that they will embrace the African Renaissance by rejecting arbitrary colonial borders. Their prejudice has, time again, resulted in suffering and brutal killings of vulnerable poor people who are in South Africa to seek a better life.

Therefore, it is time to explore other avenues, such as the courts. The law provides for criminal responsibility. The Constitutional Court held recently that, under international and domestic law, the Police Service in South Africa has a duty to investigate crimes against humanity.

When all else fails, we have domestic and international legal tools to hold power accountable. It is time to invoke those tools in order to protect human life.

You can contact me on Twitter: @Brad_Cibane.

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