Presidential Immunity Unveiled: Navigating the Legal Waters of Head of State Protections
A President can appear on the news for a number of a reasons, and regardless of what it is, we all follow the storyline with interest. After all he or she is our head of state and captain of our ship – where they point our ship is important and as members of the ships’ crew, we are all eager to see in which direction we are headed.
As we have learnt – more recently – the direction one President takes is not always in the best interests of the ship or the crew. And the only thing we can do is hold on tight for fear of ferocious waves knocking us overboard.
Take ex-US President Trump as an example – he’s fighting court battles on multiple sides. The ‘sex and bribes’ data protection claim (recently rejected by UK courts), civil fraud case as set out in the article Dissolving Trump’s business empire would stand apart in history of NY fraud law, defamation case discussed in the article Defamation defeat a double-edged sword for Trump as well as the question whether Trump is eligible to run for president as set out in the article As Supreme Court weighs Trump’s eligibility, the ‘10th justice’ stays mum. That’s a lot of battles to be fighting all at once.
Closer to home we have had our own legal debacles involving both ex-President Jacob Zuma (now suspended by the ANC) and our current President Cyril Ramaphosa.
And that makes one wonder – are President’s afforded the same immunity as diplomats? Surely as heads of state there is a line that cannot be crossed?
Exactly what immunity does a President have?
Before we delve into the exact immunity a head of state possesses, it’s important to note Section 34 of our Bill of Rights –
“34. Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.
The right of access to courts may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution.
But the fact of the matter (and as provided by our Constitution) is this - regardless of who the parties to a matter are, in South Africa, everyone has access to the courts and may institute legal action against anyone – no one person is above the law.
In addition to the Constitution and as contained in Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, which clearly sets out in its preamble –
“make provision for notice requirements in connection with the institution of legal proceedings against certain organs of state in respect of the recovery of debt;”
The key wording here – to make provision for. Not to prevent.
Pinpointing the exact immunity of a President, leads us to international law. As set out by the Helen Suzman Foundation –
“Immunity enjoyed by heads of state forms part of customary international law; that is, international obligations that arise from state practice rather than written international agreements between states. It is complex, particularly as international law often operates in grey zones rather than black and white ones. In practice, a head of state may not be arrested or subjected to prosecution in a foreign country by virtue of the office that he or she holds as the head of state. It finds application in the relations between states and the relationship between international tribunals and states. As the International Criminal Court (ICC) observed, immunities “are not provided, in international law, for the benefit of a particular individual, but are grounded on the need to avoid interference with the functioning and sovereignty of one State by another State””.
So, at this point we know two things –
- In local matters, all South African’s have access to courts and are able to institute legal action against anyone within the Republic, including organs of state, and
- In international matters, it’s a commonly accepted principle in international law that heads of state by virtue of the position they hold, are immune from arrest or subjection to prosecution in a foreign state. The reason? Similarly to what we set out in our previous article on Diplomatic Immunity – to “avoid interference with the functioning and sovereignty of one State by another State” (Helen Suzman Foundation).
In a nutshell, Presidents are generally not sued. But…. There’s always a but isn’t there?
In what circumstances can a President be arrested or be a party to litigation?
The immunity afforded by international law is not something that is codified or reduced to law. Rather it’s an accepted international practice. A case of - leave our captain alone so he can steer our ship from troubled waters. Don’t interfere with his or her duties. Let them be.
But then the Rome Statute walks into the room…. do you remember what the Rome Statute is all about? We discussed it in our article South Africa’s Duty to the International Criminal Court - Is there one?. As a brief reminder –
The International Criminal Court - which was formed in 2002 - seeks to investigate, prosecute, and try individuals accused of committing the most serious crimes of concern to the international community as a whole. That includes the crime of genocide, crimes against humanity, war crimes and the crime of aggression. In fact, the preamble of the ICC sets out as follows –
“The most serious crimes of concern to the international community as a whole must not go unpunished.”
And it started with the Rome Statute – the ICC’s founding treaty – which was signed on 17 July 1998 in Rome.
123 countries are a party to the Rome Statute. Amongst them is South Africa. In fact, South Africa played a crucial role not only in the drafting of the Rome Statute but was also one of the first countries in Africa to fully incorporate the Rome Statute into domestic law by codifying the statute into local legislation with The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
While the ICC is not a substitute for national courts, the Rome Statute sets out that “it is the duty of every State (and signatory to the Statute) to exercise its criminal jurisdiction over those responsible for international crimes”. The ICC also – and importantly – doesn’t recognise immunity for Presidents in the cases of the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
A document titled "Understanding the ICC" sets out the following -
- “The ICC can investigate and, where warranted, prosecute, and try individuals only if the State concerned does not, cannot or is unwilling to do so genuinely.
- When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute.
- The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC.
- No one is exempt from prosecution because of his or her current functions or because of the position he or she held at the time the crimes concerned were committed. Acting as a Head of State or Government, minister or parliamentarian does not exempt anyone from criminal responsibility before the ICC”.
With the above in mind, one would naturally assume that those countries that are a party to the Statute would abide by the orders of the ICC. This includes abiding by and exercising warrants of arrest issued by the ICC.
So, in situations where the ICC issues a warrant of arrest for a President of a country – for example the issuing of a warrant of arrest for the erstwhile President of the Sudan Omar al-Bashir and the question of whether he should have been arrested on entering South Africa.
In 2015, and as set out by the Guardian in the article Sudan president Omar al-Bashir leaves South Africa as court considers arrest –
“His abrupt departure early on Monday came amid urgent calls from the UN general secretary, Ban Ki-moon, the EU, and the US for the 71-year-old Sudanese leader to be detained.
Dressed in traditional white robes, Bashir – who is wanted by the international criminal court (ICC) for alleged genocide and war crimes in Darfur – emerged from his plane in Khartoum on Monday afternoon to be greeted by cheering supporters.
His flight is a serious challenge to the authority of the ICC, which has issued two international warrants for his arrest.
As Bashir’s plane took off from Waterkloof military airfield outside Pretoria, the local high court was hearing arguments over an application that would have forced the South African government to arrest him.
A South African judge criticised the government for allowing Bashir to leave. “The conduct of the respondents to the extent that they have failed to take steps to arrest and detain the president of Sudan, Omar al-Bashir, is inconsistent with the constitution of the Republic of South Africa,” Dunstan Mlambo said.
The high court ruled after Bashir’s departure that he should have been detained”.
Or more recently when deciding whether or not to abide by a warrant of arrest for Russian President Vladimir Putin when attending the BRICS Summit held in South Africa in August of last year. Initially, South Africa – as set out by the Guardian in the article South Africa grants Putin and Brics leaders diplomatic immunity for summit issued a blanket diplomatic immunity for all attendees of the BRICS Summit, as set out in the aforementioned article -
“South Africa has issued blanket diplomatic immunity to all leaders attending an August summit, meaning Vladimir Putin might be able to travel to Johannesburg and not fear the country acting on an international criminal court warrant for his arrest.
South African officials insisted the broad offer of immunity, issued in a government gazette, may not trump the ICC arrest warrant. As an ICC member, South Africa would be under pressure, and possibly under a legal requirement, to arrest Putin. The court issued a warrant for his arrest in March over the alleged forcible deportation of children from Ukraine to Russia”.
In the end, Putin didn’t attend the BRICS summit. President Ramaphosa said that this decision was reached by mutual agreement (CNN).
With all the above in mind, we can conclude this article by stating the following –
If we apply the provisions of accepted international law to the question of arresting or suing heads of state, we can surmise that they have immunity insofar as it would interfere with the functioning and sovereignty of one State by another State. BUT should a president be guilty of crimes of genocide, crimes against humanity, war crimes and crimes of aggression, it would be (or should be) incumbent on members of the Rome Statute to abide by orders from the ICC which could include a warrant of arrest and the exercise of a state’s criminal jurisdiction over those (including President’s) responsible for international crimes of genocide, crimes against humanity, war crimes and the crime of aggression.
It's a matter of walking a line. Not a very thin line, mind you. The line between immunity and not. All we can hope for is this – may our President walk the line of truth, of valour and may he hold the best interests of his people close to his heart.
Because if he doesn’t…
(Sources used and to whom we give thanks –the Guardian here and here; Aljazeera; the Helen Suzman Foundation the International Criminal Court and here; and CNN).
If you have any questions about the information we have set out above or have a personal issue which you want to discuss with us, please don’t hesitate to contact us at NVDB Attorneys.
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