Press Release: Commission for Gender Equality to argue that Dr Mugabe should have not immunity from assault charges
Published by The Legal Resources Centre 08 May 2018
For Immediate Release: 09 May 2018
On the 10 and 11 May 2018 in the Pretoria High Court, the Commission for Gender Equality, represented by the Legal Resources Centre, will present their submissions as a friend of the court in a matter in which the Democratic Alliance and others are challenging the granting of immunity to Dr Grace Mugabe, following assault charges being laid against her by Ms Engels.
Can the Minister of International Relations & Cooperation grant a foreign and powerful politician immunity from prosecution and liability after that politician has been accused of assaulting a woman? The Commission for Gender Equality (the Commission) will argue that she cannot.
Section 7(2) of the Constitution obliges the State to respect, protect, promote, and fulfil the rights in the Bill of Rights and when interpreted in light of international law, that obliges the State to take reasonable steps to protect women from violence. Granting the immunity to Dr Mugabe violates this obligation.
The Commission agrees with the Applicants’ submissions that Dr Mugabe has no immunity as a spouse of a head of state under international law. However, to the extent that the Minister granted Dr Mugabe immunity (which she otherwise would not have had) under s 7(2) of the Act, the decision implicates several of Ms Engels’ rights in the Bill of Rights.
Ms Engels, as a woman, forms part of a particularly vulnerable group of society. Women are far too often the victims of domestic assault, such as the one allegedly perpetrated by Dr Mugabe. The Minister’s decision must be seen in this context. The State should not be reinforcing the patriarchal status quo by unlawfully protecting someone who has been accused of violating and abusing a woman.
South Africa has assumed multiple direct international obligations to ensure justice for victims of gender violence. It is obliged by international law to ensure that victims like Ms Engels have access to effective remedies, and that alleged perpetrators like Dr Mugabe are investigated and prosecuted. Granting Dr Mugabe immunity means that Ms Engels’ cannot seek justice for the violence allegedly done unto her. She has no remedy or avenue for relief. Her claim is no longer justiciable.
This clearly violates South Africa’s obligation to impose penal sanctions on those convicted of violence done to women, and to offer women who are victims of violence access to justice. It contradicts the international commitment to pursue policies which seek to eliminate all forms of violence against women. To have granted a foreign, powerful politician immunity after that politician has been accused of violently assaulting a woman is not a reasonable step to fulfil, respect, protect and promote the rights of women.
Since the end of the apartheid regime in 1994, the South African government has been committed to developing and implementing policies and national legislation with the aim of ensuring that the rights of women are protected from all forms of violence and injustice. The Commission will submit that the Minister’s decision undermines and flouts the commitments made by the State to ensure that South African women are protected against all forms of violence.
Furthermore, the Commission will argue that the Minister’s powers under section 7(2) of the Act, which enables her to grant immunity, may only be exercised “if the conferment of immunities and privileges is in the interests of the Republic.” The Commission agrees that the jurisdictional fact was not met when the Minister made the decision.
What is in the interests of the Republic can only be determined with reference to the Constitution and to South Africa’s obligations in terms of international law. It can never be in the interests of the Republic to violate the Constitution, or to act contrary to the international commitments made by the Republic.
But this is exactly what the Minister’s decision does: it violates her obligation, as a member of State, to respect, protect, promote and fulfil the rights in the Bill of Rights and it flouts the international law obligations which South Africa has expressly committed itself to. The Commission for Gender Equality accordingly supports the applicant’s argument to have the decision declared inconsistent with the Constitution and set aside.
The CGE will be represented by Adv Lerato Zikalala at the hearing.