The Socio-Economic Rights and
Accountability Project (SERAP), has
requested the Prosecutor of the
International Criminal Court Mrs.
Fatou Bensouda to use her “good
offices and position to investigate
allegations of hate speech by the
Zulu King Goodwill Zwelithini,
which has resulted in killing,
violence and discrimination against
Nigerians and other African citizens
living in South Africa, as well as the
complicity/negligence of the
country’s law enforcement agencies
to prevent these crimes against
civilian population”.
The organisation also urged her to
“bring to justice anyone who is
responsible for these international
crimes prohibited under the Rome
Statute of the International Criminal
Court.
In the petition dated April 23 and
signed by SERAP’s executive
director, Adetokunbo Mumuni, the
organisation said it “considers the
use of speech by the Zulu King to
promote hatred and/or incite
violence against non-nationals such
as Nigerians, particularly in the
media as a clear violation of the
provisions of the Rome Statute of
International Criminal Court”.
“Grave statements by political
leaders/prominent people that
express discrimination and cause
violence against non-nationals
cannot be justified under any law.
This hate speech generated fear and
hatred that created the conditions
for violence and discrimination
against Nigerians and other African
citizens. SERAP believes that this has
given rise to individual criminal
responsibility under the Rome
Statute of the International Criminal
Court,” the organisation said.
The organisation argued that, “the
statement by the Zulu King amounts
to a harmful form of expression
which incites or otherwise promotes
hatred, discrimination, violence and
intolerance. We are seriously
concerned that crimes against
humanity are often accompanied or
preceded by the kind of statement made by the
Zulu King”.
“Once the climate of violence has been created,
direct and public incitement to crimes builds on
it, exacerbating the situation by further heating
up passions and directing South Africans’ hatred
towards non-nationals such as Nigerians. Hate
speech by King Zulu is legally tied to
contemporaneous, large-scale violence and
inhumane and discriminatory treatment of
Nigerians and other African citizens,” SERAP also
argued.
The organisation also said that, “The statement by
the Zulu King has contributed to a climate of
fear, demonization and dehumanization of
Nigerians and other African citizens, thus
violating their human dignity through
humiliation and expulsion from the human
community. SERAP is seriously concerned that
hate speech by the Zulu King amounts to crime
against humanity of persecution and has directly
contributed to an infringement of the right to
life, equality and non-discrimination of
Nigerians and other African citizens.”
“SERAP considers the statement by the Zulu King
and the apparent complicity/negligence by the
country’s law enforcement agencies to prevent
the violence and discrimination as amounting to
active encouragement of South African citizens to
develop feelings of contempt for Nigerians and
other African citizens; as amounting to
incitement to violence and discrimination against
Nigerians and other African citizens, and to
mistreat them; and as amounting to an appeal for
South African citizens to separate themselves
from Nigerians and other African citizens,” the
organisation further stressed.
“The statement by the Zulu King and the
apparent complicity/negligence by the country’s
law enforcement agencies to prevent the violence
and discrimination has contributed to the level of
persecution against Nigerians and other African
citizens. According to Professor Bassiouni,
persecution in this instance is “a state action
leading to the infliction upon an individual of
harassment, torment, oppression, or
discriminatory measures, designed to or likely to
produce physical or mental suffering or economic
harm, because of the victims’ beliefs, views, or
membership in a given identifiable group (such
as non-nationals),” the organisation also said.
The petition further reads:
“In the Mugesera case, the Canadian Supreme
Court held that hate speech may constitute
persecution, even if it does not result in the
commission of acts of violence. In arriving at this
conclusion, the court considered that a link was
demonstrated between the speech at issue and
the widespread or systematic attack against the
civilian population. Thus, the post-World War II
jurisprudence generally establishes that hate
speech not urging an audience to commit
imminent violence can constitute persecution.”
“The government does not have the political will
to bring those suspected to be responsible for
crimes under international law to justice. Given
the complicity/negligence by the country’s law
enforcement agencies to prevent the violence,
killing and discrimination, it is unlikely that the
government will take any serious action to bring
perpetrators to justice.”
“Without accountability for these serious human
rights crimes, the victims will continue to be
denied access to justice, and impunity of
perpetrators will remain widespread and the
result will continue to be a vicious cycle of
violence and discrimination against Nigerians
and other African citizens living in South
Africa.”
“SERAP believes that substantial grounds exist to
warrant the intervention of the Prosecutor in this
case. Under Article 17 of the Rome Statute, the
Court is a court of last resort, expected to exercise
its jurisdiction only if states themselves are
unwilling or unable genuinely to investigate and
prosecute international crimes. Also, pursuant to
the Rome Statute, the Prosecutor has power to
intervene in a situation under the jurisdiction of
the Court if the Security Council or states parties
refer a situation or if information is provided
from other sources such as the information
SERAP is providing in this case.”
“On the basis of the above, SERAP asks you to:
Urgently commence an investigation proprio
motu on the allegations of hate speech and the
accompanying killing, violence and
discrimination against Nigerians and other
African citizens living in South Africa, with a
view to determining whether these amount to
international crimes within the Court’s
jurisdiction. In this respect, we also urge you to
invite representatives of the South African
government to provide written or oral testimony
at the seat of the Court, so that the Prosecutor is
able to conclude on the basis of available
information whether there is a reasonable basis
for an investigation, and to submit a request to
the Pre-Trial Chamber for authorization of an
investigation.
Bring to justice those suspected to be responsible
for serious human rights crimes in South Africa.
Urge the South African government to fulfil its
obligations under the Rome Statute to cooperate
with the ICC; including complying with your
requests to arrest and surrender suspected
perpetrators of international crimes, take
testimony, and provide other support to the ICC.
“It would be recalled that while addressing
Pongolo community members during a moral
regeneration event recently, Zwelithini
reportedly said, “Most government leaders do not
want to speak out on this matter because they are
scared of losing votes. As the king of the Zulu
nation, I cannot tolerate a situation where we are
being led by leaders with no views whatsoever.
We are requesting those who come from outside
to please go back to their countries. The fact that
there were countries that played a role in the
country’s struggle for liberation should not be
used as an excuse to create a situation where
foreigners are allowed to inconvenience locals. I
know you were in their countries during the
struggle for liberation. But the fact of the matter
is you did not set up businesses in their
countries.”
“Zwelithini, who spoke from a prepared speech,
made the remarks in the presence of Police
Minister Nathi Nhleko.”