A foul week for a First Lady
The case against Grace Mugabe took a new turn when she left the country before dawn on Sunday 20th August 2017, just hours after the South African government gazetted the granting of diplomatic immunity. This followed an uncertain and turbulent week for Zimbabwe’s tempestuous First Lady. She had faced the risk and embarrassment of arrest for allegedly assaulting Gabriella Engels, her boys’ companion, at a hotel in Sandton, Johannesburg. It’s been a foul week for a First Lady.
The granting of diplomatic immunity has raised controversy and Gabriella Engels’ lawyers have announced that they will challenge it in court. The South African government had a serious dilemma. They had to balance between the interests of justice, which favoured the arrest and prosecution of Zimbabwe’s First Lady and international relations, which favoured the granting of diplomatic immunity to keep an old and frenetic neighbour happy. It chose the latter, a decision that will naturally invite not only a legal challenge but also a political problem on the domestic scene.
The South African opposition parties will not spare Zuma’s ANC government. Zuma now has another problem so soon after surviving a vote of no confidence motion just two weeks ago. Not long ago the government faced severe criticism from the International Criminal Court for failing to enforce a warrant of arrest against the wanted Sudanese leader, Omar al-Bashir. In this case, the Zuma government has done the footballing equivalent of taking one of the team, where a player commits a foul and earns a caution for the good for the team – in this case the team being the SADC region. SADC peers would have prevailed on Zuma to go easy on Grace Mugabe. But now Zuma must face the heat at home as political rivals circle around again, citing misuse of power and failure to protect citizens’ rights.
For Grace Mugabe, she may be safely home after one of her toughest weeks as First Lady but she knows she has created a challenge for herself and her family. South Africa is now home to her two sons whose conduct generated this furore. She is a frequent visitor and reports indicate that she is heavily invested there. Now, it will no longer be easy to return to what is ironically, her country of birth – Grace was born in Benoni. And even if she does, she is unlikely to have peace of mind. It’s not a nice position. She will worry too about the safety of her two boys who are not known for meekness and quiet life-styles. It could be time for another move, but where to? Home, where her husband rules, is not exactly paradise, despite their abundant wealth.
When elephants fight …
However, there is also the small matter of AfriForum’s role in the matter. They stepped up to assist Gabriella Engels in the matter. Their entrance was not without drama, what with a press conference and the presence of star prosecutor, Advocate Gerrie Nel. Their arrival raised eyebrows among those who were familiar with the rights’ outfit. For many others, the mere presence of Gerrie Nel was enough to generate excitement. In their view, the bar had been raised and Grace Mugabe would be humiliated and nailed by the relentless force of the advocate whose star shone brightly in the Oscar Pistorius case.
But for a few others, questions catered not on the celebrated advocate but the outfit that he represented, AfriForum. What was their interest? Were they here for Gabriel Engels only or did they have another agenda? Why Gabriella Engels and not other countless victims in crime-ridden South Africa? Was it a strategic alliance for the young survivor of violence? There were fears that the young woman could become more than a victim of Grace Mugabe’s alleged assault, that her case might have become a low-hanging fruit for many, including a rights’ organisation looking for positive publicity after a few challenges in recent years.
For those in the know, AfriForum’s interest in the matter was not hard to decipher. The organisation already had history with the Mugabe-led Zimbabwe government and it was not pretty. As the whole world knows, the Mugabe-government instigated and led a land revolution in Zimbabwe, which involved often violent land takeovers from predominantly white landowners from the year 2000. Numerous legal battles were fought between the farmers and the government. Some of the cases ended up at the SADC Tribunal, a regional court which ruled in favour of the white farmers. One of the key allies of the white farmers in those battles was AfriForum. However, the Mugabe government refused to honour the SADC Tribunal’s rulings.
The farmers and AfriForum did not give up. A year ago, AfriForum fought a legal battle against the Zimbabwean government in an attempt to recover legal costs by auctioning one of Zimbabwe’s properties in Cape Town. It was a bitter fight that ended in defeat. But it signified once again the sour contact between AfriForum and the Zimbabwean government. Thus when AfriForum intervened in the case of Gabriella Engels, close watchers of Zimbabwean politics quickly picked up the political flavour that it would generate. Ideologically, AfriForum and the Mugabe-led Zimbabwean government are at two opposite poles. If AfriForum had found a legal opportunity to nail Mugabe, it was also a gift to the Mugabe regime and its propaganda machinery which would promote the line that AfriForum were merely on a mission of vengeance. The tragedy is that in all this the most important person, Gabriella Engels would be pushed to the periphery. As they say, when elephants fight, it is the grass that suffers. What is not clear is whether Gabriella Engels was fully aware of this acrimonious contact between the two when she agreed to AfriForum’s offer of representation.
Curious fight for "justice for Zimbabwe"
For those who knew this history, it was difficult not to imagine that AfriForum had another agenda apart from helping the young woman who had survived a violent attack allegedly at the hands of Zimbabwe’s First Lady; that beyond the pursuit of justice for Gabriella Engels, there was another objective. These suspicions became solid when AfriForum released a statement released on Monday 21 August 2017, a day after Grace Mugabe had controversially received the grant of diplomatic immunity from the South African government. The statement that promises to carry forward the legal battle ends by stating, that “The fight for justice for Zimbabwe and for Miss Engels will therefore go ahead until it is won”. It was an intriguing line which was quickly picked up by critics in light of what has just been discussed. It certainly raises a number of questions:
The relevant part is the reference to fighting “for justice for Zimbabwe”. What exactly did AfriForum mean by “the fight for justice for Zimbabwe”? How did the personal case of Gabriella Engels become a case of “justice for Zimbabwe”? Surely, the only justice that matters here is for Gabriella Engels as Zimbabwe is not an aggrieved party in this matter? Sure, there are lots of justice issues around Zimbabwe but what is the connection with Gabriella Engels’ pursuit of justice in this case? Their client in this case is Gabriella Engels, not Zimbabwe and it is justice for her, not for Zimbabwe that is immediately important. Justice for South Africa would have made more sense, since the issue of administration of justice has been compromised by the granting of diplomatic immunity. Is AfriForum not conflating issues here of justice for Zimbabwe and justice for Gabriella Engels?
It’s not surprising that critics and Mugabe’s supporters are pointing to this part of the statement as confirmation that AfriForum is fighting a war of vengeance against Mugabe and that Gabriella Engels is only a pawn in a bigger war that she knows nothing about. If that is the case, Gabriella Engels does not deserve it. She is the victim here and she is the one who deserves justice. She is not fighting any battle for Zimbabweans and there is no need to cast her as a hero for Zimbabweans. It’s her rights and interests that are at stake and they must not be subsumed in a bigger war that has little to do with her.
Battle for street names
There is one case that provides a fair idea of AfriForum and what it generally stands for. Last year AfriForum was involved in a constitutional battle against the City of Tshwane (Pretoria). The dispute was over the city authority’s attempts to change and rename some of its streets. AfriForum intervened to stop the city from changing the street names. AfriForum’s argument, as summarised by the majority judges in the Constitutional Court was that the “removal of the old street names [was seen] as doing violence to what defines the very being of the Afrikaner people as well as their healthy and peaceful existence. To them it was an assault on their treasured history and heritage which could not be left unchallenged.”
A High Court judge ruled in favour of AfriForum, temporarily stopping the City of Tshwane from changing street names. The Constitutional Court summarised the rationale of the High Court judgment as follows:
“The old street names are an historical treasure and a heritage so intimate to the very being of the Afrikaner people that their removal would constitute an infringement of their right to enjoy their culture as envisaged by section 31 of the Constitution. In other words, what reigns supreme in Afriforum’s opposition to the notion that old names be removed, is that they are an integral part of an irreplaceable and much-cherished history, heritage and culture of the Afrikaner people. So dear and invaluable are the old street names to them that even their temporary displacement would not only give rise to inestimable emotional hurt but also to irreparable harm. The replacement of old names with those of black people would according to Afriforum somehow toxify the environment to the point of jeopardising the health of like-minded residents of Pretoria.”
On appeal, the Supreme Court of Appeal had ruled in favour of AfriForum. However, the city won its appeal when it came to the Constitutional Court, with the majority ruling in favour of its decision to change street names. But given the circumstances, it was more than a simple case of changing street names. The three judgments, which delve into the history of colonialism and its continuing character, make some interesting reading. The minority judgment which was delivered by Justices Cameron and Froneman favoured AfriForum, but even they were highly critical of the attitude shown by AfriForum towards issues of historical injustices and apartheid to which they had referred as if they were not factual realities. After quoting AfriForum’s submissions in which it referred to “so-called historical justices” and “so-called apartheid”, the judges wrote scathingly,
“So-called! This embodies the kind of insensitivity that poisons our society. There were historical injustices. Apartheid was all too real. And it was profoundly pernicious. These facts are not “so-called” figments of black people’s imagination … To deny these realities or avert one’s eyes to them lays one open to a charge that what one seeks to protect is not culture, but a heritage rooted in racism. The Constitution protects culture, yes, but not racism.”
These were damning statements from judges who were otherwise found in AfriForum’s favour. The majority judges, led by Chief Justice Mogoeng, were however more scathing, making reference to a colonial “system [which] was all about the entrenchment of white supremacy and privilege and black inferiority and disadvantage.” They bemoaned the stubborn character of colonialism or apartheid whose “divisive and harmful effects continue to plague us and retard our progress as a nation more than two decades into our hard-earned constitutional democracy,” and decried the fact that “virtually no progressive or potentially conciliatory change to city, town or street names goes unchallenged.” In this case, it was AfriForum which was challenging the “progressive” names changes.
The majority found that Afriforum had “consistently opposed” the proposed changes to street names where the city wanted to replace “street names like Dr Hendrik Verwoerd, Louis Botha and Walker with new ones like President Nelson Mandela, Chief Justice Ismail Mohamed, Solomon Mahlangu and Steve Biko.”
The minority judges who ruled in favour of AfriForum were at pains to explain their position in light of AfriForum’s disagreeable approach and attitude to the matter. They wrote, “It is difficult to recognise the rights and entitlements of those who deny the historical injustices of our past and who dub them “so-called” historical injustices. But recognition and tolerance of difference, even radical difference, is what, in our view, the Constitution demands of us. It is not consonant with the values of the Constitution to deny constitutional protections to people because of the content of their beliefs, views and aspirations.”
The Constitutional Court eventually ruled in favour of the City of Tshwane, permitting it to effect the name changes. The majority saw the name changes as part of a process of transforming society, removing the divisive symbols and becoming more inclusive. “Our shared values that underpin our constitutional vision cannot be achieved when one race almost always has its way or a near-absolute monopoly of respect and honour,” the court said. “That is a recipe for the illegitimate retention of exclusive privilege, undeserved domination of the past and future hostilities as opposed to inclusivity, reconciliation and the unity in diversity we have undertaken to pursue and achieve. No measure of sophistry, contortion, or strategy ought to be allowed to entrench any form of racial domination or exclusivity to privilege, honour and opportunities.”
For AfriForum, the street name change matter was not just a legal case that was lost. Its reputation also suffered, which is why for some, the moment it became associated with the Gabriella Engels case, eyebrows were raised and there were a number of questions. It is true, as some have said that in some cases, the enemy of your enemy is your friend. Time will tell whether or not it has been a strategic alliance. For AfriForum, it is their opportunity to demonstrate that they are more than a just a sectarian white Afrikaner outfit. To their credit, they appear to be well resourced and are a tenacious bunch in their fights. It is unlikely that they would abandon her as that would cause untold harm to their reputation. In Gerrie Nel, they have a battle-hardened warrior who will cause serious discomfort to anyone on the other side of the court room. If Grace Mugabe’s fortune were to run out at some stage, now or in future, she is unlikely to survive Nel’s brutal cross-examination.
But first, they must get over the hurdle of the diplomatic immunity which stands between them and any prosecution. Any lawyer with a basic appreciation of international relations and regional politics in Southern Africa would have known how hard, if not impossible, it would have been for South Africa to prosecute Mugabe’s wife regardless of her obvious wrong-doing. International relations and regional politics were always going to trump the pursuit of justice. They were always going to find a way. If she qualified for diplomatic immunity for the Hong Kong incident nearly 10 years ago, South Africa was not going to act any differently. It is wrong and deplorable but it is an unfair world in which law often plays second-fiddle to international relations. The courts, more often than not, are reluctant to interfere in what are regarded as matters of diplomacy, which they say are best left to the executive arm of government. One can only hope that in all this mess of law, politics and international relations, the one person whose interests matter the most, Gabriella Engels is not altogether forgotten.
If you have the patience to read the full judgments in the cited case, this is the full citation and link to the case: City of Tshwane Metropolitan Municipality v AfriForum and Another  ZACC 19