Notes following the Briefing of Department International Relations and Cooperation's Director- General, Ayanda Ntsaluba

Friday, July 31, 2009

Ladies and Gentlemen of the Media Good afternoon;
We have invited you to brief you on our International engagements for the forthcoming period:


Minister Maite Nkoana-Mashabane will participate on the 11th Meeting of the Ministerial committee of the Organ on Politics, Defence and the Security Cooperation in Swaziland from the 31 July to the 02nd August 2009.

Issues that will be included on the agenda are:

* Status of ratification and/or accession to the protocols related to defence, public security/safety and security
* Progress report on the implementation of the strategic indicative plan for the organ (SIPO) action plan.
* 2010 Implementation of the UNIVISA in the SADC region
* Progress report on Hashim Mbita project
* Consideration of the report of the inter-state politics and diplomacy committee (ispdc) and inter-state defence and security committee (isdsc)
ú Progress report on political and security situation in the region
ú Contribution of SADC member states in peace support operations
Just to contextualise, this is the build up to SADC Summit to take place in Kenya on the 02nd to 08th September 2009. One of the issues that will be discussed which is the hot spot will be the issue on Madagascar.

KENYA (AGOA) - 04-06TH August 2009

Minister Maite Nkoana-Mashabane will participate in the African Growth Opportunity Act (AGOA) taking place in Kenya. The AGOA is between the United States of America and the Sub Sahara region. As you all know the Secretary of the State will be on the African tour


* South Africa is one of the three beneficiaries under AGOA,
* South Africa's exports to the US under AGOA are the most diversified when compared to other Sub-Saharan African countries exports, with the first two countries exports under AGOA consisting mainly of petroleum based products.
* AGOA has boosted bilateral trade between the US and South Africa, and it is estimated that about 98% of South African and other Sub-Saharan African countries' exports to the US receive preferential treatment under AGOA.
* The other two major beneficiaries are Nigeria and Angola.

From Kenya Minister Nkoana-Mashabane will depart for South Africa where she will host:-


The Secretary of the State will be arriving in South Africa on the 06TH and Minister Maite Nkoana-Mashabane will host her bilateral discussions at the Presidential guest house in Pretoria followed by the Press conference on the 07th August 2009. The meeting will be held in the Presidential Guest house. Upon conclusion of the discussion at the guest house she will proceed to Johannesburg to pay a courtesy call to our former President Mr Mandela, later that evening in the context of the women's month Minister Nkoana-Mashabane will host a dinner in honour of Secretary Clinton on the Theme of "celebrating women" where prominent women will be invited. On the 08th Secretary Clinton will be in Cape Town visiting USA aided projects. Secretary Clinton will depart South Africa on Sunday the 09th August 2009.


Colleagues as you are aware, particularly the Defence force, 10years after of engagement in Burundi, South Africa will be withdrawing its troops as you know colleagues this ends 15years of civil strife in Burundi and Pres Zuma as the commander in Chief will be presiding over the ceremony in the lowering the flag. Both the departments of Defence and DICO will be involved in this initiative.


South Africa and Angola have had good political relations since 1994 when the bilateral diplomatic relations between the two countries were normalised. These good and historic relations were cemented during the period of liberation struggle when Angola housed and supported for many years south African liberation cadres in various camps in that country. And we look forward to having pres Zuma's visit to Angola.

Later today, I will be meeting the Ambassador Cosme, Director for Africa and among other things we will discuss the establishment of the South Africa/ Angola Binational Commission as well as the pending state visit by Pres Zuma to take place on the 20-21st August 2009.

Colleagues, this is the first state visit by the President and this decision was deliberate that it should be Angola.

Key highlights for the month of September colleagues, President Zuma will be paying two key visits:

Venezuela- Africa/ South America Summit in Venezuela followed by
USA-(New York) Our participation at the UNGA 64

* 22 September high level meeting on Climate Change
* 24 September President Zuma speaks at the opening of UNGA 64

Closer to the period we will brief you more on these engagements.


There is noticeable progress regarding the functioning of the Inclusive Government notwithstanding the few outstanding issues which will need to be resolved soon. All the Parties are committed to full implementation of the GPA. South Africa, SADC and AU as guarantors of the GPA remain seized with the Zimbabwe issue and would provide the necessary support to the Zimbabwean political leadership to implement the GPA.

Constitution-making process is progressing notwithstanding concerns raised by some civil society organisations around the use of the Kariba Draft Constitution as a reference document. Of importance is the fact they continue to participate in the process.

SADC would continue to engage international community to support the economic recovery of Zimbabwe.

Economic situation has improved dramatically. In his mid-year fiscal policy review statement, Minister Biti indicated that the country's economy might grow by over 3% in this financial year- a significant development indeed. This could be ascribed to a number of factors including the adoption of multi currency system which has basically eliminated hyperinflation and brought back consumer goods.

We are following the humanitarian support very closely, when coming to the Humanitarian support I must say that previously we have reported that we will be lending Zimbabwe 300 million Rands and we have transferred 200 million Rands. I must say we are extremely encouraged that the resources have impacted on the livelihood of the ordinary citizens like Clinics, Water supply, Sanitation and things like that.

Positive response by a number of countries and organisations in extending credit lines thus facilitating import/export transactions.

Sudan and the ICC

The ICC Prosecutor Mr Luis Moreno-Ocampo's indictment of President Omar Al Bashir of the Sudan under Article 58 of the Rome Statute of the ICC generated much controversy.
Two schools of thought emerged on how best the AU could react or deal with this precedence setting matter. The first argued for Africa's unity of purpose in rejecting this indictment as it was setting a dangerous precedence of indicting a sitting Head of State. The second and counter view to the first argued that a total rejection of the indictment would by implication be interpreted as endorsing the much reported gross human rights violations in Darfur.
As a result it argued that the indictment be deferred while all efforts are deployed towards finding lasting solutions to the Darfur crisis and broadly the situation in Sudan. Key to this approach was a need to strike a balance between the imperatives of peace against those of justice without creating an impression of promoting impunity.
It is within this context that the 142nd Meeting of the Peace and Security Council (PSC), held in July 2008, called for the deferment of the indictment; and directed the AU Commission to urgently establish a High Level Panel on Darfur. The objective of the Panel would be to investigate ways of addressing the twin challenges of "accountability and combating impunity, on the one hand, and reconciliation and healing on the other".
The PSC Communiqu, was endorsed by the 12th Session of the AU Assembly held in Addis Ababa, Ethiopia in February 2009. The Summit directed the AU Commission to establish a panel of eminent personalities called the AU Panel on Darfur (AUPD) under the leadership of former President Thabo Mbeki. The AUPD's mandate is to undertake an in depth examination of the Darfur situation and develop a roadmap towards "combating impunity, on the one hand, and the reconciliation and healing, on the other...". The AUPD is expected to present its outcomes by September 2009.
The Assembly further directed that a high level delegation from the AU meet with the UN Security Council (UNSC) with the intention of urgently requesting a deferment in line with Article 16 of the Rome Statutes establishing the ICC. Article 16 authorises the UNSC to effect a deferment for a period of a year, renewable. When taking this decision to approach the UNSC the AU was alive to the fact that the UN as a custodian of multilateralism is primarily charged with the responsibility of maintaining international peace and security.
However, the failure by the UNSC to acknowledge the AU decision and agree to meet with the AU delegation did not assist in the resolution of this matter. Furthermore, it deepened the perception that Western powers treated African leaders with contempt. The July 2009 decision should therefore be viewed as another attempt by the AU Heads of State to engage the UNSC in deferring the indictment for at least a year to allow the Panel on Darfur finalise its report by September 2009.


To provide a report on the African Union (AU) Assembly decision on African Indicted
Personalities by the International Criminal Court (ICC) and the implications thereof.

On 03 July 2009, during the AU Summit held in Sirte, Libya, the AU Assembly held a discussion on African Indicted Personalities by the ICC, which was prompted by the issuance of the warrant of arrest against President El Bashir by the ICC. During the discussion, the AU General Assembly took a decision that, "in view of the fact that the request by the African Union [for the United Nations Security Council to invoke Article 16 of the ICC Statute in the case against President El Bashir of the Sudan] has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome statute of the ICC relating to immunities, for the arrest and surrender of African indicted personalities".

Legal Implications

South Africa is the State Party of the Rome Statute of the International Criminal Court and is therefore obliged to cooperate with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court (Article 86), and hence also in the execution of arrest warrants. It is worth noting that Article 87(7) of the Statute provides that, when a State Party fails to comply with a request to cooperate, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties, or in the case of a United Nations Security Council (UNSC) referral to the UNSC.

Article 27 of the Rome Statute provides that the official capacity as Head of State or Government of an accused provides no exemption from criminal responsibility. Furthermore, Section 4(1) of the South African Implementation of the Rome Statute of the International Criminal Court Act also ousts the applicability of other domestic laws in respect of an accused, with the result that the immunity from prosecution that President El Bashir would normally have enjoyed in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), is not be applicable.

An international arrest warrant for President El Bashir has been received and endorsed by a magistrate. This means that if President El Bashir arrives on South African territory, he will be liable for arrest.

The AU decision aims to obligate AU Member States not to cooperate with the ICC with regard to the arrest and surrender of "African indicted personalities". In this respect, the decision aims to cover persons indicted with regard to all the situations in Africa, namely Sudan, the Democratic Republic of Congo, Northern Uganda and the Central African Republic.

Article 98, which is referred to in the Decision, creates two situations which aims to stop the Court from proceeding with a request for surrender, and reads as follows:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State of diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of a sending State for the giving of consent for the surrender."

The situation foreseen in Article 98(1) will not be applicable in South Africa as Section 4(1) of the Implementation of the Rome Statute of the International Criminal Court Act, ousts the applicability of immunities conferred by the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), and President El Bashir (or any other "African indicted personality") will not be able to enjoy immunity against the provisions in the Act on South African territory.

It appears that the AU Decision is based on a decision by the International Court of Justice that held that the indictment of a Foreign Minister of the Democratic Republic of Congo by Belgium in terms of its domestic law, was in violation of Belgium's obligations in terms of the international law applicable to immunities (DRC v Belgium (Yerodia Case), ICJ, 2006. It is submitted that due to the position in South African domestic law as set out above, the finding in this case will not be applicable. In any case, it was also held in the Yerodia case that an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, when such courts have jurisdiction.

Article 98(2) aims to prevent a conflict between an international agreements to which a State was party to before acceding to the Rome Statute or before a request for arrest was made, which provided for a situation where the consent of another State is required before a person of that State can be surrendered to the Court, and the provisions of the Rome Statute. It appears, also from Paragraph 10 of the Decision, not to be applicable to South Africa because South Africa has not concluded an agreement of that nature with the Sudan or any State.

C. Political Implications
South African common law treats international law as part of municipal law, and this has been given constitutional endorsement by section 232 of the Constitution, which provides that, "Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament." South Africa also prides itself as a country that respects the rule of law, including international law and the struggle for a rules based international system.

Furthermore, South Africa's constitution is based on the values of "human dignity, the achievement of equality and the advancement of human rights and freedoms". Ascension to the AU Assembly Decision will signal non-adherence to the above, which will negatively impact on our international reputation and stature as observed during South Africa's non-permanent membership to the UNSC.

There has been an outcry by some analysts and leaders from the Continent that the ICC seem to be focusing only on Africa, as the four cases currently before the Court are African cases. It should be noted that while this argument is true, three of the four cases were self-referral, only the Sudan case was referred to by the UNSC. Some analysts argue that the focus on Africa should be celebrated rather than criticised as the ICC was created in order for the perpetrators of worst atrocities, regardless of rank and status, would be brought to account.

It should be noted that Panel on Darfur, led by former President Thabo Mbeki, is still conducting its work and is yet to present its findings. The Panel is supposed to propose a roadmap on how the Sudan should deal with the issues of justice for crimes committed in Darfur. The recommendations of the Panel are likely to raise pressure on the government of the Sudan to engage in serious efforts to address the injustices and crimes against humanity since 2003. If it does commit to deal seriously with those issues one can envisage a situation where pressure for the ICC to deal with the situation in Darfur would be alleviated.

Proposed Position regarding the AU Decision

It is therefore proposed that

South Africa reiterates its commitment towards the fight against impunity, the rule of law, including the Rome Statute of the International Criminal Court.

Urge the United Nations Security Council to invoke Article 16 of the Rome Statute, while strongly urging the Sudanese authorities and the other Parties to the Darfur conflict to work towards a comprehensive peace agreement in Darfur that will also address the issue of justice for the victims of Darfur. Such a move by the Security Council should be done in the light of the recommendations of the AU Panel on Darfur which will likely up the stakes for the Sudanese government to seriously address the issues of impunity in Darfur.

Questions and Answers

Eye Witness News

DG, I know if President Al Bashir tries to come here you will have to take action. Now you have not said we will or will not fully implement the decisions of the African Union Summit. If the President of Sudan attempted to come to SA will we still be forced to take action?

Independent News.

There have been some suggestions that Prime Minister Tsvangirai will come down to meet President Zuma, he has complained about violations of the Global Political Agreement. It there such a meeting planned?

Iran News

There have been report in the media about talks on Madagascar in Maputo, can you confirm this information? If yes what would be the agenda?


Can you also try to deal with the question of appointment of Ambassadors?
There have been reports that certain people have been appointed as Ambassadors.



Thank you very much.

Let me start.

On Madagascar, you will recall that a team has been appointed led by President Chisano and one of the recommendations of Summit was that there must be a way of finding a neutral venue outside Madagascar, preferably within the SADC region for the four main political formations to meet and participate namely the one led by former Mayor Rajoelena then Mr Zafi, then President Ravalomanana and former President based in Paris, So all of them need to participate in this meeting. Indeed President Chisano has had an engagement with all of them. I should reluctantly concede that there will be indeed a meeting, Maputo will certainly be the venue and I would not like to go to details and we will, at appropriate time.

President Chisano will make the necessary announcement but indeed have agreed to that as a venue. There is no predetermination on our side as far as I know. And SADC was very consultative and there have been all sorts of suggestions because there have been some preliminary discussions there, thus all sorts of formulas that people have been talking about , how to constitute an interim arrangement leading to future elections. But as I recall the proceedings of the Summit was that the negotiator, the facilitator should not present the parties with any predetermined view. Let that rather emerge out of the preliminary consultations that they would have.

So that's where we are on Madagascar,

On Zimbabwe.

I guess what I was saying is that and I kept on saying, notwithstanding the issues that are problematic precisely because we recognise that there are issues that still need to be sorted out, some are issues where agreements have already been taken but must be implemented but some are actually issues where agreements need to be reached. For example, the issue of the Attorney General and the governor of the Reserve Bank.

There are issues where the two parties need to reach some sort of arrangement consistent with the fact that they were due to negotiate and open that discussion in terms of the GPA. There are issues for example the issue of the Governor where some arrangement has been arrived at, but now they have to implement. .

It is true indeed that Prime Minister Tsvangirai requested to have discussions with our President but this was also in the context of the fact that he had undertaken, some time back, upon the conclusion of his European tour he would wish to have the opportunity to brief him and of course needless to say he would want to raise the outstanding issues and I'm am sure that our President, as Chair of SADC is also concerned about making sure that these issues are addressed speedily before they derail the process,

So that's where we are!

Around the appointment of Ambassadors. Let me say indeed there are three appointments that have been made that we will give more details on perhaps latest by Monday. The reason we would elect not to go that route now, not to make any confirmations now, of course we have to be respectful to the countries that we have approached seeking agrement , so we tend to be a bit conscious about that.

But those announcements will be made pretty soon but for now I'm more comfortable leaving it at the level of speculation than confirming anything, but as I say around Monday. . We have made mistakes in the past where we released these names and ended up confirming and sometimes it appeared bad because if we have not secured the agrement the host country begins to think we are taking them for granted. Because technically once you have decided on an ambassador you have to wait for the country to indicate but for the variety of reasons we think on Monday we would have made formal announcements on this.

On President Al Bashir.

If today President Bashir landed in the country, in terms of the provisions of our law he would have to be arrested but out of the reasons I was avoiding getting into that have to do with the fact that we then create sensation out of an imaginary situation because he is not here now and we are unaware that he is going to be here. And I'm choosing my words very carefully because I said if he came here today because as we speak today there is no other intervention I'm aware of that has taken place, which would involve our legislature because as I said we have got the ICC Act here . We are not even sure that South Africa wants to go that route. So it still stands as a pure factual situation that is the issue that we would have to grapple with. But as I say I don't think we should sensationalise this issue because we are talking about the abstract.


Sunday Times

On Hilary Clinton's visit are you going to revamp the Commission that existed as chaired by then Deputy Presidents Mbeki and Al Gore?

Secondly what benefits are there in the engagements with Angola beyond the symbolism of the past?


First of all the BNC last sat during the Presidency of Bill Clinton. We have had eight years where that BNC did not actually sit But it did not sit because there were mishaps or whatever, it was a deliberate decision that President Bush's administration had a particular slant and preference around how it wanted it. It wanted to keep the engagement far much more not structured but continue to have informal consultative processes. You know that President Bush was here and President Mbeki went to the US, there were numerous encounters between the former Minister Dr Dlamini- Zuma and both at that time Secretary of States Powell and Condoleezza Rice. But it remained at that.

Now the two Ministers, our Minister and State Secretary Clinton met recently in Washington around the time of the discussion of the situation in Sudan and came to the conclusion that they would like to structure the arrangement a bit and of course meeting as they did on the margins of a meeting did not get into details of that which is what they will focus on when they meet here, so that it is quite clear how we want to deal with it.

And one thing for sure we know, I think both parties are not necessarily looking at it to be a bi-national commission in the form that it was before but a very structured engagement, but we will see what comes out of that and again we have got certain views as South African but I think it would be presumptuous to put that before the media before the Principals discuss and see how to proceed. I think at the time of the conclusion of the meeting of our two principals by August 07 I'm sure they will be in a better position to give details on this.

Now, with respect to the issue of the strategic nature of our relations with Angola, Angola is a significant force in SADC and in the continent. It is perhaps one of the countries with the greatest possibilities. It has got enormous resources, its development was held back because of the war situation, any body who flies into Angola now would see that we are talking about a country with significant motion.

We see Angola not just at a bilateral level, as a good partner but we see Angola as a significant partner in the process of the advancement of the African agenda. We also see a strong Angola being a very important force to strengthen SADC in general and it is our strong view that a strong SADC is, I would argue, an indispensable force if you want to remain on track in the process of advancing the African agenda.

So this is very important for us. Angola is now going through the latest round of elections. We see significant advancement of democracy and we see significant commitment in the revitalisation of the economy. Again on the economic side it is our shared view that our tremendous scope for bilateral economic activity which we have not explored. SA can participate in the process of reconstruction of the infrastructure in Angola SA.

Of course being a country which does not have energy supply to the extent that Angola has, we know some of the constraints that have existed before but I think we can begin to enter into structured engagement. So this is the partnership on the economic side that stands a good chance to be mutually beneficial. So there is a regional dimension for us, in wanting to forge this partnership and there are bilateral aspects. There are broader continental aspects

Maybe finally let me add that if SA can contribute to the rapid strengthening of Angola, Angola is also a possible partner in the peace arena as a country that, on a sustainable basis, can also contribute to the peacekeeping mission, they have started doing that and there are many countries we have worked in with Angola and one of then is the DRC, So South African working with Angola is something that can be mutually beneficial for the region also.

Labour issues

Like in any other government department there are obviously organised formations of labour. We happen to have three in the Department. Of course there have been issues raised by one of the Union, which I must say for reasons we cannot discuss necessarily which can best be explained by the Union. They have moved out of the bargaining processes of the Department which is why some of the existing union have not seen it fit to necessarily support some of the issues that have been raised. Not because they don't have issues of their own but because they are raising them within the fora that has been established.

We did of course get a sense that there has been some degree of agitating on some issues. We offered to engage. We had a series of meeting and these meetings did not necessarily take us far. We are not the ones who walked out of those engagements. We constantly indicated that the management of the Department remained available to address the issues that were raised and none of the issues raised, in our view required discussion outside the formal structures that are established in terms of the Labour Relations Act.

So as you know some of the issues were extremely new to me, as some allegations I saw in the media. But I don't think really that I want to get into the details of all those issues, suffice to say, obviously there is a new administration and that administration has engaged us and initiated a process by Minister and Deputy Ministers to try and look at the issues. They have invited the union not so much to raise general issues but to be specific. I'm unaware to date of the specifics that would have been given, obviously in the encounter that we had those have not surfaced.

On the allegation that were made in the media let me say very categorically that they are unfounded; it's a pity that to me they found themselves in the media in the manner they did. But I'm not going get into a debate on that. I have always taken the view on this issue that the call (inaudible) at the centre of the agitation is that the person in Ayanda Ntsaluba in the view of those members of the union should not continue in the position of the Director General of DICO.

It's not an engagement that you can enter into precisely because that is not your decision. I could not decide on that. I have been given a job to do. I have tried to do it as best as I can and I'm certain I have done it as honestly as I can and the rest of the issues I will leave to the Minister and the Cabinet that is in a better position to make a determination, once all the facts haves been provided to her, but I have no doubt that any allegation around corruption or impropriety, certainly will not stand any significant scrutiny.

The example that was cited referring to issue that date back as early as 2005 about the tender that was given to Didata by the Department, which was issued late in 2005 early 2006, I don't sit in any tender committee. And moreover, more importantly that tender was not issued by the Tender Board of the Department Foreign Affairs (at the time) but it was issued by SITA. But I don't have to get into those details because I didn't have the opportunity to respond to the media. So I will follow the processes that are there, the process that has been started by the Minister by the Deputy Ministers.

All I can say now is that I'm humbled by the decision of the Cabinet to reappoint me to continue to do what I'm doing which they took yesterday and I will continue to work as I have done in the past.


Last week Amb. Nene mentioned the consultations process with the Department of Justice; does that suggest any possible change in law with regards to South Africa international obligations?


I have said the legal framework that we have right now, that guides us; we are signatories of the Rome statute. We are a member of the ICC, we have got certain obligations , not only that, our Parliament passed a law and that law is extremely explicit about what would happen if a situation like that happened .

I can not foresee the government working outside the framework of the law that is what I said if at this moment this is what happened that exactly the law would have to take its course. Now I even stressed that I could talk about what would happen now because I know the situation I am not privy to any decision or discussion about changing any law in South Africa. In fact I don't believe such a discussion exist as we speak. What obviously all of us are grappling with and this is not unique to SA is the tension that arises between your own legal framework and the decisions taken in multilateral framework that you are party to. All of us are trying to navigate carefully. This is note only a dilemma for SA but a dilemma for all the countries that are state parties, how do you balance that?, obviously in our case its quite clear our entire democratic dispensation is based on legality and that what happened at this moment as we speak, its quite clear to me that actually the legal provisions would have to take their course, Because any interference with that would be taken actually as violations of our constitutions

So that is why I was saying its that sort of issue and it creates major difficulties because at the same time we are members of the AU, we participate in the proceedings of the AU and this is not the first time and will not be the last time that a country like SA would have to grapple with this. And I think instead of jumping into conclusions which unfortunately some of the elements of the debate seemed to anticipate that SA would take the view of acting against its own laws and therefore in preference of the decision of the AU. In don't think there was a decision like that.

We have been in consultation, as you would expect with the Department of Justice as Government, all of us to try to look at the situation we are dealing with. And its note the only one. The issue would have presented itself before the election but we found the way that enabled us to respect our laws because we knew exactly what obligations would have in terms of our own laws and in terms of the fact that we are signatories of the Rome statute . That is why I say for now it is a theoretical thing because I don't believe that President Al Bashir would go out of his way to want to test what choice SA will make. I think let's leave peacefully precisely because we don't believe we will do that now.

I Thank You