The Courts: Lights That Guide Our Foreign Affairs?

The document argues that while foreign policy is primarily an executive function, South Africa's constitutional mandate for the rule of law makes it susceptible to judicial review. It details how civil society organizations, such as the Southern Africa Litigation Centre (SALC), have used actual and threatened litigation to challenge government decisions regarding torture in Zimbabwe, the appointment of a Sri Lankan diplomat, and the visit of Sudanese President Omar al-Bashir. The author notes that while courts are effective when international criminal law obligations are domesticated, they are less equipped to challenge broader political decisions. The paper also highlights a similar trend in Kenya, where courts ordered an arrest warrant for al-Bashir.

• South African courts have the jurisdiction to review foreign policy decisions because the constitution requires that all public power be exercised according to the rule of law and rationality, meaning the constitution serves as the 'light that guides our foreign affairs'.
• In a case involving state-sanctioned torture in Zimbabwe, the North Gauteng High Court ruled that the National Director of Public Prosecutions must initiate an investigation into Zimbabwean officials, despite the executive's policy of 'quiet diplomacy'.
• The threat of litigation can be an effective tool for civil society to influence foreign policy, as seen when the presidency declined to recognize Major General Shavendra Silva as Sri Lanka's deputy ambassador after being alerted to his alleged war crimes.
• Civil society used the threat of court action to prevent Sudanese President Omar al-Bashir from attending President Jacob Zuma's inauguration in 2009, citing South Africa's obligations under the Rome Statute and the domestic ICC Act.
• The Kenyan High Court demonstrated a similar expansive interpretation of civil society's standing by ordering the attorney general to secure an arrest warrant for Omar al-Bashir in November 2011.
• Judicial scrutiny is most effective when foreign policy conflicts with domesticated international criminal law, but it is significantly more difficult to challenge general political decisions, such as those regarding the leaders of Swaziland or Equatorial Guinea.

APA

Fritz, N. (2014). The Courts: Lights That Guide Our Foreign Affairs? South African Institute of International Affairs. https://saiia.org.za/wp-content/uploads/2014/11/Occasional-Paper-203.pdf

Chicago

Fritz, Nicole. The Courts: Lights That Guide Our Foreign Affairs? South African Institute of International Affairs, 2014. https://saiia.org.za/wp-content/uploads/2014/11/Occasional-Paper-203.pdf.

Wikipedia

{{cite report |last1=Fritz |first1=Nicole |title=The Courts: Lights That Guide Our Foreign Affairs? |publisher=South African Institute of International Affairs |date=October 2014 |url=https://saiia.org.za/wp-content/uploads/2014/11/Occasional-Paper-203.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{fritz2014courts, author = {Fritz, Nicole}, title = {{The Courts: Lights That Guide Our Foreign Affairs?}}, institution = {South African Institute of International Affairs}, year = {2014}, month = oct, url = {https://saiia.org.za/wp-content/uploads/2014/11/Occasional-Paper-203.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }