Tuesday, May 11, 2004

Does the South African government have an obligation to protect nationals abroad? If, for example, the alleged mercenaries currently held in Zimbabwe will face an unfair trial if extradited to Equatorial Guinea, should the government intervene to protect them?

So far the South African government has argued that it has no such obligation. This, they have argued, is a matter falling solely with the sovereign rights of Zimbabwe and Equatorial Guinea. Therefore it will not intervene.

Interestingly, however, the issue of whether the South African Constitution obliges the government to offer diplomatic protection to nationals abroad is currently before the High Court. And if the High Court finds that there is such a duty, then it might well mean -- as this article points out -- that the government should intervene if the alleged mercenaries cannot be guaranteed a free and fair trial abroad (which might well be the case in Zimbabwe and Equatorial Guinea).

It goes without saying that, if a duty of diplomatic protection is established -- and I've got a sneaking suspicion that it will be -- then the authority of the South African courts will be severely tested. Imagine the Constitutional Court ordering that the South African government should request the extradition of these men back to South Africa, against the will of Zimbabwe, Equatorial Guinea and, quite possibly, the South African government itself.

Why would this be a problem? Because, on the one hand, Mbeki's African renaissance is, as Andrew has pointed out, all about demonstrating that African nations can do things for themselves (hence, the reluctance of the South African government to intervene); but, on the other, the rule of law is supposedly central to Nepad. Interesting days indeed...

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