Ramaphosa affidavit on Putin ‘confidential’

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The court papers President Cyril Ramaphosa has filed in response to an application by the Democratic Alliance to compel the state to arrest Russian leader Vladimir Putin if he were to come to South Africa will not be made public, his office said this week.

The presidency said the reason for this was in the provisions of the Rome Statute, the treaty that established the International Criminal Court (ICC).

The ICC issued a warrant for Putin’s arrest in March, alleging that he is responsible for the war crime of deporting Ukrainian children to Russia. It has become an international relations nightmare for South Africa, which is a signatory to the statute and is to host the Brics summit in Durban in August. The grouping consists of Brazil, Russia, India, China and South Africa.

In papers filed to the Pretoria high court in late May, the DA said the state’s failure to confirm that it would either ensure that Putin did not attend, or that it would heed the arrest warrant if he did, created a reasonable apprehension that it “intends to act unlawfully”. 

The party is asking the court for a declaratory order confirming that the government is obligated to arrest Putin if he enters South Africa. 

“The president has filed a confidential answering affidavit,” Ramaphosa’s office told the Mail & Guardian.

“The respondents are obliged in terms of international law to keep the interactions with the ICC on the warrant of arrest against President Putin confidential. The ICC requires the fact of the request for cooperation to be kept confidential. To date there has been no relaxation of the requirement of confidentiality by the ICC.”

It cited Article 87(3) of the Rome Statute, which reads: “The requested state shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.”

The department of justice has 

confirmed that South Africa has, like all ICC member states, received a formal request asking that Putin be arrested to face prosecution if he were to come into the country. 

“It was sent on a confidential basis,” said Chrispin Phiri, the spokesman for Justice Minister Ronald Lamola.

The minister, who is cited as the second respondent in the application filed by the DA, has filed a confirmatory affidavit.

The president’s answering affidavit was due last week but the state attorney asked the court for a five-day extension, saying Ramaphosa’s schedule was busy and he needed more time to consult other members of the government who were cited as co-respondents.

An attorney for the DA said on Thursday it had consented to the president filing on a confidential basis, but would argue that there was no need for the entirety of his papers to remain confidential.

“We agreed to them filing the affidavit confidentially but reserved our right to challenge the need for confidentiality once we received the affidavit,” said Elzanne Jonker, of Minde, Schapiro and Smith.

“While we accept that certain portions of the affidavit can remain confidential, we do not accept that there is any basis for the majority of the affidavit to be confidential.”

The DA thus plans to argue that the court should refuse to keep the rest of the president’s papers secret.

Ramaphosa has been advised by an inter-ministerial committee that there is no legal loophole the government could use to host Putin without arresting him and finding itself in breach of international law. The committee recommended that the government expedite efforts to ensure that the summit be shifted to another country, possibly China, because that country is not a member of the ICC. 

For the moment, diplomatic negotiations to find a way out of the conundrum continue. 

The presidency has denied reports suggesting that Ramaphosa had wrung an undertaking from Putin that he would not attend the summit when they met in Russia a fortnight ago during a peace mission by representatives of a handful of African nations. 

It is understood, however, that Ramaphosa intends to raise the subject with Putin at the end of July when he will attend the Russia-Africa summit in Saint Petersburg.