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The Libyan Transitional Council at law is not a democratic successor: Welshman Ncube

6 years ago | 3365 Views
Interview: Ncube on Libyan envoy
by Violet Gonda I VOA
Libyan ambassador Taher Elmagrahi was given until Friday, September 2, 2011, to leave Zimbabwe after he denounced the deposed Colonel Muammar Gaddafi and declared his allegiance to the rebels who have seized control in Tripoli. Zimbabwe is yet to recognise the new rebel administration.
MDC leader and Industry and Commerce Minister Welshman Ncube, a constitutional law professor, tells the Voice of America’s Violet Gonda why Zimbabwe’s position stands up to legal scrutiny:

NCUBE: At international law, Ambassador Elmagrahi placed himself in an untenable position. Whatever predicament he finds himself in is entirely of his own making in terms of international law and diplomacy.

His position is untenable for the simple reason that as ambassador, his papers of accreditation to Zimbabwe were signed by Colonel Gaddafi as head of state of Libya at the time. He therefore represents the state of Libya as previously constituted and he is called ‘Your Excellency’ by virtue of the fact that he is a representative of Colonel Gaddafi. That is the law.

The moment he denounces the person whom he personally represents in terms of international law it means he then represents no-one. He can only represent Colonel Gaddafi as the then lawful head of state of Libya at law. Until such time that he is accredited to Zimbabwe by the new administration, he cannot represent at law that new administration.

His position is made worse by the fact that the Zimbabwean government as of now has not yet recognised the Transitional Council which is in control or appears to be in control of Libya. You cannot represent an entity which is not recognised by the state which you are accredited to. He placed himself in a no man’s land at law.

VIOLET: But what about you as MDC, what’s your position on this because there are some who say Zimbabwe should have waited since the situation in Libya is changing?

NCUBE: Violet, he can’t represent an entity which is not recognised by Zimbabwe yet. He can’t represent Libya unless he holds valid letters of accreditation to Zimbabwe. Those he had which were valid were given to him by Colonel Gaddafi. The Transitional Council has not given him any accreditation and secondly it is not yet recognised in Zimbabwe.

You say Zimbabwe should have waited. The truth of the matter at law is that it is the ambassador who should have waited, the ambassador should have sat and waited until he got to a stage where firstly Zimbabwe recognised the Transitional Council and secondly that Transitional Council accredited him afresh to Zimbabwe.

The Transitional Council at law is not a democratic successor to previous government at international law. What you have had is a new administration which has come into power by unconstitutional means, by virtue of conquest, by virtue of victory in an armed conflict and that therefore means it’s not a movement, a succession issue from one government to another.

If for instance you had an election in Libya and another party had won, or another president, there is automatic succession from one to the other by virtue of a democratic, legal transition as opposed to a violent seizure of power, violent displacement of the previous regime.

So the correct position Violet is that the ambassador should have waited, and it’s not Zimbabwe which should have waited. It doesn’t matter where our political moral sympathies are, whether Gaddafi was a dictator or whether we would not have wanted him in place. At law the correct position is that for that transition to take place, it is a political and legal act because Gaddafi was not taken out of power by constitutional democratic means.

VIOLET: Just going back to the issue of the discussion in cabinet on Tuesday, I know you can’t discuss the details, but can you at least tell us if the cabinet voted unanimously or agreed that this is the position that should be taken by the government to expel the ambassador?

NCUBE: I'm reluctant to discuss something which is not within my portfolio. But since this matter has now been put in the public arena by the Deputy Prime Minister in Parliament, what I can tell you is that the Minister of Foreign Affairs gave a report of the situation in Libya as of now.

He gave a report of the standing and status of the ambassador at law and there is no vote, you can’t vote on what the law is, what international law is. You can’t dispute it, it is a matter of law and that is all that the minister did. He presented the facts, he presented the law, no-one can challenge those facts.

You can’t challenge the fact that the Libyan ambassador denounced Gaddafi; pulled down the Libyan flag as we knew it; tried to hoist the rebel flag and then purported to represent the new administration. You can’t deny the fact that as of yesterday, as of today, the Transitional Council is not yet recognised by Zimbabwe. These are the facts which were presented and they are common cause and you can’t dispute the international law position which I have just given to you.

At law an ambassador is accredited by the head of state at the time of his accreditation, and he remains so accredited until his accreditation has been withdrawn or until the new administration if has come to power by unconstitutional means or by force is recognised by the host country and only then can he represent the new government.

Basically when you are being accredited, the letters of accreditation say, for instance in the case of Gaddafi, they would have said: “I Colonel Gaddafi being the head of state of Libya hereby send so and so who is my personal representative. Believe everything that he tells you for it comes from me.”

That is what accreditation is, and if you denounce the person who gave you those letters you are left in no man’s land until you are accredited by the new administration and until that new administration is recognised by the host country. Those are the facts, and that is the legal position which was presented and it was not necessary for cabinet to make any decisions because the facts were common cause, and the legal position is common cause.
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Tags: Gaddafi,Ambassador

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