http://www.telegraph.co.uk/
Zimbabwe could be allowed back into the
Commonwealth in two years time,
under plans to be put forward at a meeting
this week.
By Andrew Porter, Political Editor
Published: 8:00PM GMT 24
Nov 2009
Robert Mugabe, Zimbabwe's president, pulled his country out of
the
organisation in 2003 and has been a fierce critic of Britain ever
since.
However, the new political coalition in Zimbabwe has helped pave
the way for
a possible early return.
Leaders of Commonwealth
countries, including Gordon Brown, will gather for
their biennial meeting in
Trinidad on Friday. Discussions will take place
that are expected to set a
timetable for Zimbabwe to be re-admitted at the
next summit in two years
time.
The re-admission will be linked to a series of reforms being
implemented by
Harare.
Officials are looking closely at how the
coalition parties, which include Mr
Mugabe's Zanu PF and the Movement for
Democratic Change, have gone about
putting in place the reforms that include
action on human rights, judicial
reform and a constitutional
overhaul.
Morgan Tsvangirai, the leader of the MDC, agreed to join a
unity government
with Mr Mugabe in January after months of political
stalemate. Under the
deal Mr Tsvangirai became prime minister while Mr
Mugabe chaired cabinet
meetings.
The South African Development
Community want to see progress on new reforms
by 6 December.
Britain
led an attempt in 2002 to get Zimbabwe suspended from the
Commonwealth after
the full extent of Mr Mugabe's brutal campaign against
his political
opponents became clear - more than 100 were killed.
However, the
diplomatic moves initially failed as foreign ministers from
eight
Commonwealth member states refused and instead chose to push for more
sanctions and demands for "full and fair elections."
When those
elections were roundly agreed not to have been fair, with
violence and
intimidation rife, Zimbabwe was suspended, initially for one
year.
But pre-empting an extension of the suspension Mr Mugabe pulled
Zimbabwe out
of the Commonwealth in 2003.
British officials ahead of
Friday's meeting said yesterday that they thought
there was some progress on
reforms in Harare, but they needed to be more
solid before firm commitments
of a return to the Commonwealth can be
countenanced.
The Queen will
open Friday's meeting in Trinidad and Zimbabwe will be
discussed a day
later. The timing has extra symbolism as it is 30 years
since a similar
meeting in Lusaka opened the way for Rhodesia to become
independent. A year
later Zimbabwe was born.
The two-year power-sharing agreement in Zimbabwe
means there should be an
election by February 2011 and a new constitution.
So a Commonwealth return
is possible after that.
However, with the
constitutional talks deadlocked there is some uncertainty
about the scale of
progress that might be achieved by 2011.
Nicolas Sarkozy, the French
President, will address the Commonwealth
gathering, becoming the first
French leader to do so. He will take part in
talks with the Prime Minister
and other leaders on climate change.
_http://www.swradioafrica.com
*By Tichaona Sibanda
24 November
2009
The renewed negotiations to resolve the country’s deep political
crisis
broke off on Tuesday when representatives from the three
political
parties attended cabinet in the capital, Harare.
The six main
negotiators from ZANU PF and the two MDC formations are
also cabinet
ministers and are obliged under government rules to attend
the weekly
meetings when they’re in the country.
MDC spokesman Nelson Chamisa told SW
Radio Africa that the negotiators
were in cabinet on Tuesday.
“Yes I can
confirm Biti and company attended cabinet today (Tuesday).
But whether
they’re going to meet later in the day I don’t know,” he said.
The three
parties first met in Harare on Monday for what are expected to
be protracted
negotiations to resolve outstanding issues in the Global
Political Agreement.
The negotiators, when they made their first
face-to-face contact in a month,
reportedly agreed to resume the crunch
talks under a media blackout.
There
was little sign that the start of the latest round of talks has
led to the
two main adversaries agreeing to give up any ground in order
to resolve the
crisis that has rattled nerves in the country and around
the SADC
region.
Distrust between ZANU PF and the MDC runs deep. Analysts were
hoping
that the latest talks would begin to ease the tensions that have
divided
the country for years.
The secretive nature of the talks has left
journalists disappointed at
the blanket ban on negotiators talking to the
media. Our Harare
correspondent Simon Muchemwa told us a Memorandum of
Understanding
signed last year made it clear any dialogue between the parties
was to
remain confidential.
“It is disappointing for the media because it
seems they’re working
under Clause 8 of the MoU which states that neither
side should
communicate directly or indirectly with the media. People deserve
to
know what is happening in their own country,” Muchemwa said.
He added;
“At the moment, we don’t even know the venue of the talks,
leading to a lot
of speculation that they’re taking place at State house
or Munhumutapa
offices.”
During last year’s negotiations journalists said denying
reporters
access to information about the talks was ‘unhealthy and
unacceptable,’
adding that the parties to the negotiations wanted to turn
journalists
and the media into ‘fiction writers.’
http://www.swradioafrica.com
By Violet Gonda
24 November 2009
MDC
Treasurer General Roy Bennett has described his terrorism trial,
which began
two weeks ago, an ‘absolute farce’ and ‘a joke.’ The MDC
official, who has
not been sworn into government as the Deputy Minister
of Agriculture because
Robert Mugabe is refusing to swear him in, said
he is frustrated with the
slow pace the trial is taking.
He told SW Radio Africa on Tuesday that the
time spent in court is very
little: “We have not even done a full three hours
in court yet. If the
court is supposed to start at 10 o’clock, we are only
starting, most
days, after 11am, having arrived there at 10 am and sitting a
full hour
waiting for the judge to come in… the whole thing is just a
joke.”
Last week the judge, Justice Chinembiri Bhunu, refused to recuse
himself
from the case after Bennett’s lawyers requested that he hand the
trial
over to another judge. The High Court judge had in 2006 handled
the
Peter Hitschmann trial which the defence team said showed he might
be
‘prejudicial’ to Bennett. But he refused, saying the cases of
Hitschmann
and Bennett ‘were separate.’
Bennett said because of the slow
pace the trial is likely to drag on for
some months. He said so far only two
state witnesses have testified and
have failed to show a case against him.
The first witness was Chief
Superintendent James Makone who told the High
Court on Monday that,
despite the case going to trial, investigations against
the MDC official
had not been completed.
The lead investigating officer
also said, they had found evidence
showing that Bennett had paid Hitschmann
$5 000 to acquire weapons to
eliminate government officials, and the money
was allegedly deposited in
Hitschmann’s account in Mozambique. But the State
witness failed to link
the MDC official to the money deposited into
Hitschmann’s account.
Hitschmann is a registered firearms dealer.
Bennett
said he found it bizarre that the case is nearly three and a
half years old
but the investigations are not finished. “Why go to trial
if the
investigations are not completed?”
He added: “And the second witness was a
CIO operative from the
President’s Office, and basically I don’t know why
they called him
because he had absolutely nothing to say.”
“The whole
thing is an absolute farce and there is absolutely nothing
linking me to
anything that has happened. Everything is going along on
basically what
happened to Peter Hitschmann, and based on the arms that
were found in
Hitschmann’s house – a case which was thrown out of court
completely.” These
are the same charges that Bennett is charged with,
and he says the state has
failed to link him to Hitschmann.
Bennett was arrested ten months ago and is
accused of illegal possession
of weapons for terrorism, banditry and
insurgency. The MDC says the
charges are trumped up. The fragile coalition
government nearly
collapsed after an MDC boycott, in protest against the
re-arrest of the
Treasurer-General, and Mugabe’s refusal to fully implement
the Global
Political Agreement.
The former commercial farmer said there is
no sincerity on the part of
ZANU PF or Mugabe in moving this process forward.
“Everything they are
doing is to delay this process and nothing seems to be
moving.”
US President Barack Obama has given a global human rights
award to the leaders of a Zimbabwean women's rights group, Women of Zimbabwe
Arise (Woza). Mr Obama presented Magodonga Mahlangu and Jenni Williams with this year's
Robert F Kennedy Human Rights Award. At the White House ceremony, he praised Woza's non-violent resistance against
oppression and the government of Robert Mugabe whom he called "a dictator". "He even gave us a kiss. He said: 'You deserve a kiss,'" Ms Williams said.
"It was just the most incredible moment in my life," she told the BBC's
Network Africa programme. "In Zimbabwe we are enemies of the state, we've been arrested over 30 times,
one magistrate called us 'incorrigible unrepentant criminals', but there we were
in the White House lifting the human rights award." Woza has organised more than 100 demonstrations in favour of democracy and
women's rights in Zimbabwe since it was formed in December 2002. "They often don't get far before being confronted by President Mugabe's riot
police," Mr Obama said. "By her example, Magodonga has shown the women of Woza and the people of
Zimbabwe that they can undermine their oppressors' power with their own power -
that they can sap a dictator's strength with their own. "Each time they see Magodonga beaten back - beaten black and blue during one
protest - only to get right back up and lead another, singing freedom songs at
the top of her lungs in full view of security forces, the threat of a
policeman's baton loses some of its power," he said. Ms Mahlangu told the BBC the struggle had been worth it "because the world is
seeing and other fellow Zimbabweans see that they are not alone".
THE WHITE HOUSE
Office of the Press
Secretary
_________________________________________________________________________________________________________________________
For
Immediate Release
November 23, 2009
REMARKS BY THE PRESIDENT
AT
THE PRESENTATION OF THE ROBERT F. KENNEDY HUMAN RIGHTS AWARD
East
Room
6:01 P.M. EST
THE PRESIDENT: Thank you so much. Thank you.
Please, everybody have
a seat. Everybody have a seat.
What a wonderful
evening. Before I begin, let me just acknowledge
some folks here in the
crowd. First of all, Ms. Kerry Kennedy, for
the great work that she's doing
day in and day out. Mr. Philip
Johnston, thank you to both of you for helping
to organize this
tonight. Obviously I've got to say thanks to my favorite
people --
Mrs. Robert F. Kennedy, also known as Ethel Kennedy. (Applause.)
To
Representative Donald Payne, Representative Gregory Meeks,
and
Representative Edward Markey, who are all here -- thank you for
your
attendance and your support of this important award.
You know,
every year for 24 years, starting the year this award was
established, my
friend, Senator Edward -- Ted -- Kennedy, spoke at
this event. And I'm told
that he looked forward to it all year --
that he relished the chance to shine
a bright light on an injustice
and on those fighting it, and to support them
in that fight. He also
enjoyed a family reunion. He relished the chance to
pay tribute to
those carrying on the unfinished work of his brother's life --
work
that for nearly half a century in the U.S. Senate he made his
own.
He was pleased that this award honored men and women across the
globe
doing a wide range of urgent work -- fighting to end
apartheid,
advance democracy, empower minorities and indigenous peoples,
promote
free speech and elections and more. Because Ted understood
that
Bobby's legacy wasn't a devotion to one particular cause, or a
faith
in a certain ideology -- but rather, it was a sensibility. A
belief
that in this world, there is right and there is wrong, and it is
our
job to build our laws and our lives around recognizing the
difference.
A sensitivity to injustice so acute that it can't be relieved
by the
rationalizations that make life comfortable for the rest of us --
that
others' suffering is not our problem, that the ills of the world
are
somehow not our concern.
A moral orientation that renders certain
people constitutionally
incapable of remaining a bystander in the face of
evil -- a
sensibility that recognizes the power of all people, however
humble
their circumstances, to change the course of history.
Those are
the traits of Bobby Kennedy that this award recognizes --
the very traits
that define the character and guide the life of this
year's recipient. And
while we feel a certain sadness that Senator
Kennedy is not with us to honor
her, let us also take pleasure tonight
in knowing just how much he would have
loved and admired Magodonga
Mahlangu and the organization that she helps lead
-- WOZA, which
stands for Women of Zimbabwe Arise, and is represented tonight
by one
of its founders, Jenni Williams.
As a young girl raised in
Matabeleland -- in the Matabeleland region
of Zimbabwe in the early 1980s,
Magodonga witnessed the -- I've got to
make sure I get this right --
Gukurahundi massacres -- the systematic
murder of many thousands of people,
including her uncle and several
cousins -- many of whom were buried in mass
graves that they'd been
forced to dig themselves.
She witnessed the
fearful silence that followed, as talking about
these events was forbidden.
Magodonga found this to be intolerable.
She wanted to speak out -- she wanted
people to know the truth about
what was happening in her country.
So
it was a revelation when, years later, she discovered a group
called WOZA
whose mission is the very opposite of silence. WOZA was
started back in 2003
to empower women to speak out about the issues
affecting their families and
their country -- desperate hunger;
crumbling health and education systems;
domestic violence and rape;
and government repression ranging from
restrictions on free expression
to abduction and murder of
dissidents.
WOZA's guiding principle is "tough love" -- the idea that
political
leaders in Zimbabwe could use a little discipline. And who better
to
provide that than the nation's mothers? Since its founding,
the
organization has grown from a handful of activists to a movement
of
75,000 strong. There's even a men's branch, I understand -- MOZA.
And
over the past seven years, they have conducted more than a hundred
protests
-- maids and hairdressers, vegetable sellers and
seamstresses, taking to the
streets; singing and dancing; banging on
pots empty of food and brandishing
brooms to express their wish to
sweep the government clean.
They often
don't get far before being confronted by President Mugabe's
riot police. They
have been gassed, abducted, threatened with guns,
and badly beaten -- forced
to count out loud as each blow was
administered. Three thousand WOZA members
have spent time in custody
or in prison, sometimes dragged with their babies
into cells.
Magodonga and Jenni are due back in court on December 7th,
charged
with "conduct likely to cause a breach of [the] peace." They face
a
five year sentence if convicted.
That so many women have decided to
risk and endure so much is in many
ways a testament to the extraordinary
example of tonight's honoree.
Each time they see Magodonga beaten back --
beaten black and blue
during one protest, only to get right back up and lead
another --
singing freedom songs at the top of her lungs in full view of
security
forces -- the threat of a policeman's baton loses some of its
power.
Each time her house is searched, or her life is threatened, or
she's
once again arrested -- more than 30 times so far -- she continues
to
stand in public and inspire the people of Zimbabwe -- the power of
the
state then seems a little less absolute.
Each time she has emerged
from incarceration after enduring deplorable
conditions and brutal abuse --
and gone right back to work -- the
prospect of prison loses some of its
capacity to deter.
By her example, Magodonga has shown the women of WOZA
and the people
of Zimbabwe that they can undermine their oppressors' power
with their
own power -- that they can sap a dictator's strength with their
own.
Her courage has inspired others to summon theirs. And
the
organization's name, WOZA -- which means "come forward" -- has
become
its impact -- its impact has been even more as people know of
the
violence that they face, and more people have come forward to
join
them.
More people have come to realize what Magodonga and the
women of WOZA
have known all along: that the only real way to teach love
and
non-violence is by example. Even when that means sitting down
while
being arrested, both as a sign that they refuse to
retaliate,
absorbing each blow without striking back -- and a warning that,
come
what may, they're not going anywhere.
They even manage to show
love to those who imprison them. As Jenni
put it, "Many a time we have in
effect conducted a 'workshop' for our
jailers, acting out the role of a
mother and teaching how the country
can be rebuilt if we have love in our
hearts."
When asked how they can endure so much violence -- and what
keeps them
going in the face of such overwhelming odds -- the women of
WOZA
reply, simply: "each other."
And that may be Magodonga's greatest
achievement -- that she has given
the women of Zimbabwe each other. That she
has given people who long
for peace and justice each other. That she has
given them a voice
they can only have collectively -- and a strength that
they can only
have together.
They are a force to be reckoned with.
Because history tells us, truth
has a life of its own once it's told. Love
can transform a nation
once it's taught. Courage can be contagious;
righteousness can
spread; and there is much wisdom in the old proverb: that
God could
not be everywhere, so he created mothers.
In the end,
history has a clear direction -- and it is not the way of
those who arrest
women and babies for singing in the streets. It's
not the way of those who
starve and silence their own people, and
cling to power by threat of
force.
It is the way of the maid walking home in Montgomery; the young
woman
marching silently in the streets of Tehran; the leader imprisoned
in
her own home for her commitment to democracy.
It is the way of
young people in Cape Town who braved the wrath of
their government to hear a
young senator from New York speak about the
ripples of hope one righteous act
can create.
And it is the way that Magadonga Mahlangu and Jenni Williams
and the
women and men who take to the streets of Harare and Bulawayo
and
Victoria Falls because they love their country and love their
children
and know that something better is possible.
Bobby Kennedy
once said, "All great questions must be raised by great
voices, and the
greatest voice is the voice of the people -- speaking
out -- in prose, or
painting or poetry or music; speaking out -- in
homes and halls, streets and
farms, courts and cafes -- let that voice
speak and the stillness you hear
will be the gratitude of mankind."
Magodongo and WOZA have given so many
of their fellow citizens of
Zimbabwe that voice -- and tonight, we express
our gratitude for their
work.
It is now my pleasure to join with Mrs.
Robert F. Kennedy to present
the 2009 Robert F. Kennedy Human Rights Award to
Magodonga Mahlangu
and WOZA. (Applause.)
END
6:12 P.M. EST
EX PARTE: COMMERCIAL FARMERS UNION
IN RE: PROPOSED BILATERAL INVESTMENT PROMOTION AND PROTECTION AGREEMENT BETWEEN ZIMBABWE AND SOUTH AFRICA
OPINION
J.J. GAUNTLETT SC
F.B. PELSER
Chambers
Cape Town
21 November 2009
A. INTRODUCTION
1. Our Consultant is the Commercial Farmers Union.
2. We have been asked to consider urgently the proposed conclusion of a Bilateral Investment Promotion and Protection Agreement (”BIPPA”) between South Africa and Zimbabwe (both members of the South African Development Community (”SADC”))1, and to advise on the relevant international and constitutional law obligations impacting thereon. Of significance is the fact that the BIPPA – which is aimed at providing security of tenure to South African investments in Zimbabwe – expressly excludes past claims arising from Zimbabwe’s post-2000 land seizure measures, despite the fact that such claims have been upheld by the relevant international court.
3. The question for consideration is whether entering into a bilateral treaty which purports to exclude liability arising (the SADC Tribunal has held, in its final award on 28 November 2008) in terms of an existing multilateral treaty constitutes a breach of South Africa’s legal obligations. For the reasons provided below, we answer the question in the affirmative.
B. BACKGROUND
4. It is necessary to provide the background to the question under consideration. As briefly outlined below, the background shows that the proposed exclusionary clause in the BIPPA impacts on legal proceedings concluded on international law level. The proceedings are also currently sub judice in Zimbabwe on the national law level, and are further subject to consideration by the SADC Summit on the international political level. (The Tribunal in a separate final ruling in June 2009 has held the Government of Zimbabwe to be in breach of its orders of 28 November 2008, and formally referred this defiance to the SADC Summit for consideration of consequential measures under the Treaty). The background further shows that the circumstances closely resemble the facts on which the High Court in South Africa has recently held against the Government of South Africa.
(a) SADC Tribunal proceedings
5. During 2007 various members of the Commercial Farmers Union instituted legal proceedings in the SADC Tribunal after exhausting existing remedies in Zimbabwe. The proceedings were based on the fact that they were either already expropriated or stood to be expropriated without compensation, as a result of Zimbabwe’s land seizure measures, purportedly (after they had commenced) authorised by amendment to the property clause in the Bill of Rights in Zimbabwe’s Constitution.
6. On 28 November 2008 the Tribunal upheld the farmers’ case. It held that Zimbabwe’s land reform exercise was in breach of international human rights norms and the rule of law as entrenched by the SADC Treaty. The Tribunal condemned the land reform exercise on all three bases contended. These were that (1) it constituted racial discrimination, because the measures did not relate to criteria of land-use or -need, but targeted only so-called white farmers and benefited designated cronies and a class of political chefs; (2) it amounted to expropriation on an arbitrary basis and without compensation; and (3) it ousted courts’ jurisdiction to adjudicate on human rights infringements. The Tribunal ordered the Government of Zimbabwe to take all necessary measures to protect the possession, occupation and ownership of farmers not yet expropriated and to pay compensation to those already expropriated.
(b) Aftermath of SADC Tribunal proceedings
7. It is a matter of public record that despite the order, farm invasions continued in Zimbabwe – not only with impunity, but with active State involvement. Therefore the farmers again approached the Tribunal, this time for an order declaring that the Government of Zimbabwe was in breach of the order of 28 November 2008 and that the matter be referred to the SADC Summit for it to consider appropriate measures. Also in the latter application the farmers succeeded, and the Tribunal made a punitive costs order against Government of Zimbabwe. Nevertheless farm invasions intensified, and instances of destruction of property, physical assaults and even murders of farmers, their families and farmworkers and their families increased.
(c) High Court proceedings
8. In order to ensure effective protection in Zimbabwe in terms of the relief grated by the SADC Tribunal, application was made to the High Court of Zimbabwe to register the Tribunal’s ruling as provided for under the Protocol to the Tribunal. That application is enrolled for hearing on 24 November 2009. It is likely to be still sub judice on 27 November, which is the date for the proposed signing of the BIPPA.
9. It is against this background – namely a ruling by the relevant international court, pending proceedings before the relevant national court and deliberation thereon by the SADC Summit – that the legal question posed is to be considered.
C. LEGAL PRINCIPLES
10. Both international law and national law imposes duties on South Africa which impact on it entering into the proposed BIPPA. We deal with the relevant international and national legal principles separately.
(a) International law
11. As stated, both South Africa and Zimbabwe are members of SADC. As such their international law obligations are governed by the SADC Treaty on sub-regional level in addition to other principles operating regionally and globally. We limit our discussion to South Africa’s obligations for purposes of this opinion.
(i) Sub-regional international law
12. In terms of the SADC Treaty, Member States are bound to honour human rights and to further the rule of law.2 Member States are also obliged to co-operate with and assist the institutions of SADC, like its Tribunal.3 Further, Members States are obliged to refrain from taking any measures “likely to jeopardise the sustenance of SADC principles”, which include advancing the rule of law and human rights.4 The Treaty further requires that States take all steps necessary to ensure the uniform application of the Treaty5
13. In our view, entering into a bilateral treaty which excludes liability imposed by the SADC Tribunal constitutes a clear violation of these duties. The exclusionary clause subverts the Tribunal’s order and detracts from the Tribunal’s status. It also jeopardises the human rights culture prevailing in SADC and dilutes the rule of law and remedies for breaches of human rights. Moreover, exemptions of liability under SADC law granted by Member States inter se in terms of bilateral treaties impede a uniform implementation of the SADC principles. This is contrary to the Treaty, which constitutes the supreme law among its Member States.
(ii) Regional international law
14. The African Charter, which is the regional instrument binding on South Africa, imposes a duty on States to ensure that human rights violations are redressed effectively. The African Commission held that
“any person whose rights are violated [should] have an effective remedy as rights without remedies have little value. Article 1 of the African Charter requires States to ensure that effective and enforceable remedies are available to individuals”6
15. This the Constitutive Act of the African Union confirms. Its Preamble provides that members States are obliged to
“promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law”.
16. Article 4(m) of the Constitutive Act gives effect to this. It obliges signatories to respect democratic principles, human rights, the rule of law and good governance. Also article 4(o) further gives effect to this principle by imposing the duty on Member States to demonstrate
respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities”.
17. Thus human rights norms operating within the wider African region requires States to give effect to human rights and their protection, and obliges States not to compromise judicial remedies by exclusionary clauses which grant impunity to human rights violations.
(iii) Global international law
18. Also obligations under global international law proscribe exemption of liability for human rights infringements as envisaged under the BIPPA.
19. In terms of the United Nations Charter the promotion and encouragement of respect for human rights and for fundamental freedoms are fundamental.7 Its preamble reflects adversely on State immunity and practices facilitating impunity. It records State parties’ commitment
“to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.
20. The Universal Declaration goes further, however. It expressly imposes the duty to provide an adequate remedy for the breach of human rights in article 8. It provides:
“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.
21. To this the International Covenant on Civil and Political Rights provides binding effect. Article 2(3) of the Covenant obliges State parties
“(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted”.
22. Article 5(1) of the Covenant provides that the above obligations may not be qualified through governmental acts, whether legislative or executive. It provides:
“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”
23. Thus the position under regional international law is fortified by instruments of global international law.
(iv) Conclusion on international law
24. In the light of the above provisions, it is clear that international law recognises the obligation to make full reparation for any injury flowing from an international wrongful act8, and acknowledges the principle that victims of human rights infringements are entitled to an effective remedy.9 Exclusionary clauses clearly compromise this, contrary to the non-derogatory obligation imposed by international law.10 As such the BIPPA falls foul of international law on account of compromising the Tribunal’s order. It not only derogates from the Tribunal’s order, however, but also detracts from its status contrary to the duty of SADC Members to defer to SADC institutions. Detracting from the judicial arm of SADC also infringes the principle of separation of powers, which is not only of national constitutional importance.
25. Relatively recently the fundamental importance ascribed to the separation of powers was reaffirmed in the Commonwealth (Latimer House) Principles on the Three Branches of Government, which has particular relevance from a South African perspective. The Latimer House Principles confirm that
“Parliaments, Executives and Judiciaries are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability”.
26. It further re-affirms the commitment to judicial independence and the effective administration of justice by courts, which is “important for maintaining the balance of power between the Executive, Legislature and Judiciary.” In doing so it gives effect to the Harare Commonwealth Declaration11, which also stresses the importance of substantive human rights norms. The Harare Declaration emphasises the co-importance of economic development and the rule of law. Both of which are equally “essential to the security and prosperity of mankind”.
27. The Harare Declaration further guarantees equal rights for all citizens regardless of inter alia race and colour, and recognises “racial prejudice and intolerance as a dangerous sickness and a threat to healthy development, and racial discrimination as an unmitigated evil” which must be opposed in all its forms.12 In the Declaration signatories further pledged to uphold
“the rule of law and the independence of the judiciary; fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief; [and to] extend the benefits of development within a framework of respect for human rights”.
28. The latter two instruments do no more than re-emphasise the binding norms of general international law as stated above. However, its re-emphasis assumes particular force as a bespoke articulation of the trite principles of international law as accepted by emerging democracies similar to South Africa. They therefore add considerable weight to the binding nature of the principles otherwise obligatory on South Africa.
(b) National law
29. From a national law perspective, the principles relating to diplomatic protection are of particular relevance. Before discussing those, it is important to note that various international law obligations referred to above also find resonance in South African domestic law.
(i) International law principles amplified by Constitution
30. One of the principles of international law amplified by the South African Constitution is the obligation to respect the independence and authority of the judiciary. It is deeply entrenched in the relevant constitutional provisions and caselaw in South African domestic law. Thus also in terms of national law the South African executive authority is bound to respect the judiciary and give effect to its judgments. So, for instance, in De Lange v Smuts NO the Constitutional Court held:
“In a constitutional democratic State, which ours now certainly is, and under the rule of law (to the extent that this principle is not entirely subsumed under the concept of the constitutional State) citizens as well as non-citizens are entitled to rely upon the State for the protection and enforcement of their rights. The State therefore assumes the obligation of assisting such persons to enforce their rights, including the enforcement of their civil claims against debtors.”13
31. This dictum was applied in Nyathi v MEC for Department of Health, Gauteng, where the Constitutional Court held
“Deliberate non-compliance with or disobedience of a court order by the State detracts from the ‘dignity, accessibility and effectiveness of the courts’. Yet s 165(4) of the Constitution expressly imposes an obligation on organs of State ‘through legislative and other measures [to] assist and protect the courts to ensure the . . . dignity, accessibility and effectiveness of the courts’.”
. . .
The constitutional right of access to courts would remain an illusion unless orders made by the courts are capable of being enforced by those in whose favour such orders were made. The process of adjudication and the resolution of disputes in courts of law is not an end in itself but only a means thereto; the end being the enforcement of rights or obligations defined in the court order.”14
32. Another fundamental principle that finds particular application in the current circumstances is the deep-seated rule that all exercises of public power are constrained by the Constitution and the Bill of Rights.[14. President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); President of the Republic of South Africa v South African Rugby Football Union (3) 2000 (1) SA 1 (CC); Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC).]
It is indeed this principle that forms the premise from which the Constitutional Court’s caselaw on diplomatic protection proceeds.
(ii) Diplomatic protection
33. The term “diplomatic protection” has a wide-ranging meaning. It includes not only all State action to prevent a threatened violation of international law, but also action aimed at remedying violations after the event.15 The importance of Constitutional constraints on the exercise of public power in the sphere of diplomatic protection was emphasised in Kaunda v President of the Republic of South Africa,16 which is the fons et origo of diplomatic protection in the South African constitutional dispensation. The principles espoused in the judgment therefore require particular attention in answering the question under consideration from a perspective of national law.
34. In Kaunda all three of the substantive judgements specifically recorded that the Executive had to exercise its power to engage in international relations lawfully and rationally, and that the exercise of such power was, despite its sensitive political nature, justiciable.17 So, for instance, the majority held that while it remained true that diplomatic protection remained the prerogative of the State to be exercised at its discretion,18 South African citizens were entitled to request protection from South Africa under international law against wrongful acts of a foreign State.19
35. Chaskalson CJ noted that when the request for diplomatic protection was directed at a material infringement of a human right protected by customary international law, the Executive had to be vigilant.20 For the Constitution contemplated positive conduct by the State to protect South Africans against human rights abuses.21 Thus the Government had a duty to consider the request for protection and had to deal with it in a way consistent with the Constitution. Indeed, so strong was this obligation that in some instances Government would have to act at its own instance.22 The majority concluded that in a case of gross abuse of international human rights, a request to Government for assistance
“where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action.”23
36. In a separate judgment Ngcobo J, as he then was, held that the commitment to the promotion and protection of fundamental human rights, democracy, justice and international law had to underpin the State’s foreign relations policy.24 He held that the State could not “remain silent when a member State commits the most egregious violations of any of the fundamental human rights enshrined in these instruments”.25 Instead, Government had to act positively “when an egregious violation of the very fundamental human rights, enshrined in the document it has ratified, is being committed by a member State.26
37. Contrary to the majority he held that the proposition that Government had no constitutional duty to extend diplomatic protection had to be rejected. That proposition, he noted, was in any event contrary to Gvernment’s own declared policy – the facts showed that Government in fact acknowledged its constitutional duty to protect its foreign nationals.27 According to Ngcobo J the duty on Government required it to consider requests for diplomatic protection, and to apply its mind carefully to the request. It had to respond rationally and could not refuse requests arbitrarily.28
38. In her dissent concurred in by Mokgoro J, O’Regan J held that the constitutional imperatives required Government to have regard to the plight of a citizen who was threatened with or had experienced an egregious violation of human rights norms at the hands of another State. Otherwise the achievement of human rights would be obstructed and international human rights norms undermined.29
39. Like Ngcobo J, she noted that this finding accorded with Government’s demonstrated policy.30 While it was clear that the consideration and assessment of another country’s justice system was a sensitive matter for our government, the demands of comity and sensitivity did not mean that Government could disregard violations of its citizens’ human rights by other States. Government had to be responsive to the developing global and regional commitment to the protection of human rights, she held.31
40. The Constitutional Court’s judgment in Kaunda was recently applied by the High Court in Von Abo v Government of the Republic of South Africa.32 The applicant in that matter was a South African citizen who had been expropriated without compensation of farming operations held in Zimbabwe. Despite his request for diplomatic protection, the South African government failed to assist him. The striking similarity with the position of the applicants in the Campbell matter clearly renders the judgment of considerable relevance.
41. In Von Abo the High Court was particularly critical of the lack of protection granted by Government. This was because the land seizures he was subjected to were clearly in breach of both South African and international law, the court held. It provided examples of steps the State could have taken in order to comply with its constitutional duty to its citizens.33 All of these comprised positive action. Significantly the court specifically mentioned the protective measure of entering into a bilateral investment treaty or BIPPA. The court observed that such protective measure would constitute sufficient constitutional protection if it contained a clause providing for compensation by the errant State to the aggrieved party, and if that clause operated with retrospective effect. Failure to adopt any of the protective measures available to it constituted an inexplicable dereliction of duty by the State, the court concluded.34
(iii) Conclusion on national law
42. In our view the High Court’s judgement in Von Abo constitutes clear authority for the proposition that entering into a BIPPA that contains a compensation clause which operation is restricted to prospective violations of human rights only, is contrary to the Constitution. It is to be noted that this judgment is final, and that its correctness has been accepted by Government in subsequent proceedings before the Constitutional Court.35
43. Also the Constitutional Court’s judgment in Kaunda provides strong authority for the proposition that a categorical denial of diplomatic protection, as the exclusionary clause in the BIPPA entails, is unconstitutional. While the majority held that no constitutional entitlement to diplomatic protection existed, all three judgments confirmed that the State had a duty to consider a request therefor. By entering into the proposed BIPPA with the exemption clause, this constitutional duty will be breached. For by doing so the State would fatally fetter its own discretion to accede to a request for diplomatic discretion.
44. We further observe that all three judgments emphasised the importance of giving effect to national and international human rights when engaging in international relations. It needs to be borne in mind that an important basis for the majority’s decision was the strong public policy consideration, affirmed by international law obligations, applicable in that case. Those were the importance of international co-operation in law enforcement of international crimes.36 In a context like the present, however, the international obligations are to co-operate with the SADC Tribunal and to give effect to its ruling, and to ensure that effective remedies are afforded to victims of human rights infringements. Clearly these considerations support granting diplomatic protection.
45. We note that in the circumstances under discussion – namely of a BIPPA purporting to provide amnesty for human rights infringements – none of the considerations justifying exemption of liability for human rights violations arises.37 Therefore the exclusionary clause cannot be justified constitutionally on this basis.38
46. Finally, as noted, the registration of the SADC Tribunal’s ruling is currently pending before the High Court of Zimbabwe. Similarly the referral of Zimbabwe’s failure to comply with it currently serves before the SADC Summit. In this light we consider that South Africa would act in violation of its international law obligations accruing on signature of the SADC Treaty and the making of its Protocol to enter into an essentially contradictory bilateral international law obligation with Zimbabwe which could pre-empt the issues for consideration. Doing so would, in our view, also breach the principle of comity which binds governments.
D. CONCLUSION
47. In our view, thus, if the Government of South African proceed to conclude the BIPPA and in terms thereof purports to immunise Zimbabwe from its international law liabilities, the South African government would act contrary to the principles of the SADC Treaty and other international instruments, and in violation of the South African Constitution, and may in law be interdicted against doing so. This is particularly so if, as must be inferred, it has negotiated the terms of the BIPPA without taking independent legal advice regarding its ability to do so in the light of the final SADC Tribunal award of November 2008, the Tribunal’s referral to the SADC Summit of June 2009, and the pending application next week in Harare to register the Tribunal’s award for enforcement under the domestic law of Zimbabwe.
We advise accordingly.
J.J. GAUNTLETT SC
F.B. PELSER
Chambers
Cape Town
21 November 2009
“An adequate, effective and prompt remedy for gross violations of international human rights law or serious violations of international humanitarian law should include all available and appropriate international processes in which a person may have legal standing and should be without prejudice to any other domestic remedies.”
See also article 3(c) of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law:
“The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation”.
Mugabe has got his wires
crossed (again) somewhere. Whilst he pleads
with the free world to release
buckets loads of money to enable the
rebuilding of Zimbabwe, he also has
stated, in words of one syllable,
that the free world must leave Zimbabwe
alone.
Amid claims that the West is ‘fomenting regime change’, he
randomly
begs the West for money. He says that it is needed to rebuild
the
country and rebuild the economy.
Let’s just remember that
we are talking about destruction wrought by
none other than Mugabe and his
loyalists!
It is lunacy to think that the free world will fill up
Mugabe’s empty
coffers and then look away whilst that same money is spirited
away by
ZANU PF…
There can be no doubt that Zimbabwe is broke
and needs all the help
that it can get. And we have to realise that any
funding provided by
the free world would have to be administered by the free
world to
avoid Mugabe having any say in where the money goes, or what it
is
used for.
We know that Mugabe’s party, ZANU PF, is stone
cold broke - although
he is probably amongst the richest in the
world.
Mugabe blames the existence of targeted travel sanctions
on the
Movement for Democratic Change (MDC) and says that the MDC
leader,
Morgan Tsvangirai, should call for the sanctions to be
lifted.
The travel sanctions were put in place long before the
advent of the
MDC, and are not the ‘illegal economic’ sanctions that Mugabe
claims
they are.
But this is how Mugabe rules. He makes a
mockery of the system of
democracy, just saying enough to obtain what he
needs, and then he
reverts to form.
Mugabe points fingers at
the West and claims that they wish to
re-colonise Zimbabwe. Who, in their
right mind, would want to
re-colonise a country which has had all the good of
the earth
(agricultural and mineral) taken from it by illegal and
forceful
means?
But in the same breath, Mugabe would be
begging for money to put
Zimbabwe back on its feet. You can’t have it both
ways!
But if your name is Robert Gabriel Mugabe you obviously
can!
Mugabe is acknowledged as the liberator of Zimbabwe - the
man that saw
off Ian Douglas Smith’s ‘racist regime’ - but if I was to ask
the
people of Zimbabwe which do they prefer, Mugabe or Smith, the
answer
would be unequivocal .
Yes, Rhodesia had it faults. But
at least the people had food to eat,
houses to live in, running water,
electricity, money to spend,
employment, health care and
education.
What has Zimbabwe to offer its people
today?
Hardly any food - 1,6 million Zimbabweans will need food
aid before
the end of 2009. Operation Murambatsvina destroyed the homes of
some
1,7 million Zimbabweans and many, now four years-plus after the
event,
live in holes in the ground under plastic.
Water seldom
runs through taps in Zimbabwe, and even when it does, it
is not safe to drink
or cook with.
Electricity supply is a joke. The power comes on
for a few hours
whilst the nation sleeps, and then is switched off
again.
Very few people have money - and the nation has abandoned
its own
Zimbabwean dollar. Who has access to the American dollar, the
British
pound or the South African Rand?
94% of the country’s
workforce are out of work, health care is on life
support and education is a
dream only.
Of course Mugabe will take the free world’s money,
but doesn’t want
the free world to see the real state of nation, so he would
prefer to
claim sovereignty, in the hope that it is enough to shut the world
up.
Robb WJ Ellis
The Bearded Man
http://mandebvhu.instablogs.com/entry/mugabe-help-us-but-leave-us-alone/
BILL WATCH 40/2009
[24th November 2009]
Both Houses are adjourned
and will resume on Tuesday 1st December
The 2010 Budget will be presented
on Wednesday 2nd December
Update on Inclusive
Government
Troika-mandated dialogue on outstanding issues under way at
last: The
preliminary deadline of 21st November for the parties to engage
in
discussions mandated by the SADC Organ Troika to resolve
inter-party
disputes passed without the negotiators having started talking.
The
idea that President Zuma would come to Harare this week to see
what
progress had been made by that date was a non-starter. The
three
negotiating teams eventually had their first meeting
yesterday,
lasting until after midnight, and agreed on a 19-item agenda.
After a
break for today’s Cabinet meeting, the negotiators will continue
this
evening and all day tomorrow. The build-up to yesterday’s meeting
was
painfully slow. There were dates set and abortive meetings, as all
the
negotiators could not make themselves free at the same time.
[Attending other
meetings took priority.] The three party principals
– Mugabe, Tsvangirai and
Mutambara – had met on Friday 13th November
to discuss the way forward. On
Monday 16th November Mr Tsvangirai met
the negotiators from ZANU PF, MDC-T
and Deputy Prime Minister Arthur
Mutambara who was representing the MDC-M in
the absence of its
negotiators. This meeting was to brief the negotiators on
the
principals’ discussions, and it was followed by an announcement
that
the negotiators would meet at a secret venue from Friday 20th
November
and work right through the weekend – a meeting that failed to
take
off.
The late start means that the parties have only 13 days left
– and any
agreement reached by the negotiators will have to be approved by
the
principals. [Analysts predict that there will be no concessions
by
President Mugabe prior to the ZANU-PF National Congress,
originally
scheduled for 8th to 13th December, but now postponed to start on
a
later date]. On 6th December, 30 days after the SADC Organ Troika
Maputo
meeting, President Zuma must assess progress [or otherwise] and
compile a
report for presentation to the chairperson of the Organ
Troika, President
Guebuza of Mozambique.
Cabinet did not meet last week, because the
President was out of the
country attending the FAO Food Summit in Rome. There
will be a
meeting today.
The Council of Ministers met last Thursday
with the Prime Minister in the chair.
Forthcoming Statement by Prime
Minister – this is to include an
assessment of the general political
situation and an outline of
government business in Parliament, which should
include the
legislative agenda [although this was outlined in the
President’s
speech, the Prime Minister is in fact Leader of Government
Business in
Parliament]. It was scheduled for this week, but as
Parliament
adjourned it has been rescheduled until after the 1st
December.
Last Week in Parliament
House of Assembly
Private
Member’s Bill to Amend POSA Given Go-Ahead – Mr Gonese’s
motion seeking the
leave of the House of Assembly to introduce his
private member's Bill to
amend the Public Order and Security Act
[POSA] was approved on Thursday 19th
November. The Bill will now be
printed and gazetted. When 14 days have
expired after its gazetting,
Mr Gonese will be able to introduce the Bill,
and it will thereafter
follow the same procedure as a government Bill. As
gazetting will
take some time, it is unlikely that the Bill will be gazetted
in time
to be introduced before the House adjourns for its holiday
season
break. [See Bill Watch Legislative Reform Series of 19th November
for
information on private member’s Bills.]
Reserve Bank of Zimbabwe
Amendment Bill: There had been opposition to
this Bill by the ZANU-PF caucus
as a result of which discussions took
place with the Minister of Finance and
agreed amendments were approved
when the Bill was went through the Committee
Stage after its second
reading. The amended Bill was referred to the
Parliamentary Legal
Committee, which promptly provided a non-adverse report.
It was then
passed and transmitted to the Senate. Amendments include
the
following: [Amended Bill available on request.]
· the proposed new
Audit Committee and Oversight
Committees will be merged in a single Audit and
Oversight Committee.
This will be chaired by the deputy chairperson of the
Bank’s board and
the other members will be non-executive members of the Board
appointed
by the Minister [not complete outsiders, as proposed in the
original
Bill].
· the Minister’s proposed new powers to give
the
Board policy directions are eliminated from the Bill.
· a clause,
headed “Immunity of Bank, etc” has
been added, giving the State, the
Minister, the Bank and its Board,
the Governor and the Bank’s employees
limited immunity from civil
“claims” for things done “in good faith and
without negligence” under
the powers conferred by the Reserve Bank Act. This
clause has
attracted criticism but, as Minister Biti has pointed out, it is
a
standard clause which appears in other Acts establishing
statutory
bodies and does not grant a blanket immunity, e.g. for fraud,
etc.
· the provision for the State to take over the
Bank’s shares in
companies controlled by it is replaced by a new
provision requiring the Bank
to dispose of such shares. The
Minister’s approval will be necessary for
every disposal.
Other Bills: The Financial Adjustments Bill, the object
of which is
to condone unauthorised expenditure by Ministries in 2006, was
passed
by the House without amendment and transmitted to the Senate.
The
second reading debates on the Public Finance Management Bill and
Audit
Office Bill commenced, with the Minister of Finance explaining
the
general principles of both Bills. Debate will continue on
1st
December.
Motions: The House approved the motion calling for the
setting up of
a committee to examine and report back to the House on the
procedures
for declaring national heroes. Debate commenced on Hon.
Matutu’s
motion calling on the inclusive government to immediately carry out
a
comprehensive audit of the voters roll.
Questions: Deputy Minister
of Youth Development, Indigenisation and
Empowerment Tamsanqa Mahlangu
provided details on youth training
centres, the number of youths undergoing
training at the centres and
the number and deployment of youth officers in
the Ministry.
Parliamentary Legal Committee [PLC]: The PLC submitted
non-adverse
reports on the Minister of Finance’s Public Finance Management
Bill,
Audit Office Bill and Financial Adjustments Bill, and on
the
amendments made to the Reserve Bank of Zimbabwe Amendment
Bill.
Senate – the Senate did not sit last week.
SADC
Parliamentary Forum This Week
Zimbabwe is hosting the SADC Parliamentary
Forum plenary session in
Victoria Falls, which is why the House of Assembly
and the Senate are
not sitting this week. The Forum will discuss its possible
upgrading,
from a body which merely discusses regional issues with the aim
of
capacitating member Parliaments, into a regional Parliament with
real
legislative powers.
Senator Roy Bennett: High Court Trial
Continues
On Monday 16th November Justice Bhunu dismissed the
defence
application for him to recuse himself from hearing the trial.
Mr
Bennett pleaded not guilty to the charges and the first State
witness
was called. The trial continued on Monday 23rd November, with
the
first State witness still under cross-examination. After the
first
witness’ evidence, the court adjourned until today,
Tuesday.
Update on Independent Constitutional Commissions and BAZ
Board
There is still no news of appointments being made to the Human
Rights
Commission, the Electoral Commission and the Media Commission, or
of
consultations between the President’s Office and Parliament
on
appointments to the Anti-Corruption Commission. Last week the
Prime
Minister said that the Media Commission appointments would
be
announced soon. He also confirmed that the composition of a new
board
for the Broadcasting Authority of Zimbabwe [BAZ] has not
been
finalised; and that the announcement some time ago of BAZ
Board
members by the Ministry of Media, Information and Publicity had
been
incorrect.
Next Week’s Parliamentary Agenda
House of
Assembly
2010 Budget: The Minister of Finance will present his 2010
Budget on
Wednesday 2nd December. This entails not only the Minister’s
statement
on the economy’s performance and prospects, but also the tabling
of
the Estimates of Expenditure for 2010 and related taxation
proposals,
which will be incorporated in the Appropriation (2010) Bill and
the
Finance (No. 3) Bill, respectively.
Bills: On Tuesday 1st December
the second reading debates will
continue on the Public Finance Management
Bill and the Audit Office
Bill.
Motions: Debate will continue on
motions carried over from last week
or the week before, including a motion
calling for an audit of the
voters roll; and the debate on the President’s
Opening of Parliament
speech.
Question Time [Wednesday]: 26 Questions
with Notice, some of them
carried over from previous Question Times, are on
the Order Paper for
reply by the relevant Ministers or Deputy Ministers. New
questions
seek information on:
· subsidiary companies established by
parastatals
· the functions of the Ministry of State
Enterprises and
Parastatals vis-à-vis the appointment of board members
of State
enterprises
· if and/or when there will be mobile births and
deaths
registration exercises in both rural and urban areas
· government policy
on members of the Central
Intelligence Organisation [CIO] joining and holding
office in
political parties while in State
service
Senate
Bills: The Senate’s first order of business will be
to consider the
Reserve Bank of Zimbabwe Amendment Bill and the Financial
Adjustments
Bill, passed by the House of Assembly and transmitted to the
Senate
last week.
Motions: Any time not taken up by consideration of
Bills will be
devoted to the continuation of the debate on the President’s
Opening
of Parliament speech
Legislation Update
Bills in
Parliament: Reserve Bank of Zimbabwe Amendment Bill [HB 7,
2009], Public
Finance Management Bill [HB 9, 2009], Audit Office Bill
[HB 10, 2009] and
Financial Adjustments Bill [HB 8, 2009] [Electronic
versions available on
request.] Likely to be passed by both Houses in
December. [See Parliamentary
Update above.]
Bill Awaiting Introduction: Public Order and Security
Amendment Bill
[private member’s Bill – see above]. Unlikely to be introduced
this
year.
Statutory Instruments: No statutory instruments were
gazetted last week..
Veritas makes every effort to ensure
reliable information, but cannot
take legal responsibility for information
supplied.