The Most Unpleasant Journey of Simon Mann
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13 March 2008: The Most Unpleasant Journey of Simon Mann
The story of Simon Mann, the British Old Etonian and former SAS officer continues to receive a lot of interest in Africa and abroad. Mann, together with his seventy-strong ‘entourage’, mostly men of South African nationality, was arrested on 7 March 2004 at the Harare International Airport where they had allegedly stopped to collect weapons. The Zimbabwean authorities claimed that they were mercenaries en route Equatorial Guinea to overthrow the government with the assistance of the British, Spanish and US secret services. The accused countered that they were on their way to the Democratic Republic of the Congo where they had been contracted to guard a mine, and that they had stopped at Harare airport to collect weapons which had been legally purchased for that purpose.
Mann was convicted and sentenced to seven years in prison for illegal possession of arms of war and buying weapons without a valid certificate. On appeal, his sentence was reduced to four years. Mann completed his four-year sentence and launched an unsuccessful appeal against his extradition to the oil rich Equatorial Guinea for plotting to overthrow the government. His argument that, if extradited to Equatorial Guinea, he would not receive a fair trial and would be tortured was dismissed by the High Court of Zimbabwe. Mann is now in the hands of the Equatorial Guinean authorities.
The question of whether Mann will receive a fair trial in Equatorial Guinea remains to be answered. Proponents of human rights argue that, based on previous cases of alleged coup plotters in Equatorial Guinea, the likelihood is that he will not receive a fair trial. The 2005 report Amnesty International stated that allegations of coup attempts against the government of Equatorial Guinea have often been followed by arrest, torture and unfair trials. Cases in point are documentation of over a dozen coup allegations and the unfair trials.
It is yet to be seen whether Constitutional guarantees would be applicable to Mann. The Constitution of Equatorial Guinea guarantees the right to defence before tribunals and the right to a fair trial within the limits of respect for the law. The Constitution also presumes the accused to be innocent until legally proven guilty. Equatorial Guinea is a Party State to most of the major human rights instruments, which impose an obligation on the on Party States to respect, promote and protect human rights. One important charter is the African Charter on Human and Peoples’ Rights, which entered into force on 21 October 1986. Equatorial Guinea ratified the Charter on 1 April 1996. In terms of article 62 of the Charter, Equatorial Guinea undertook to submit, every two years from the date in which the Charter came into force, a report on the legislative or other measures taken, with a view to giving effect to the rights and freedoms recognised and guaranteed by the Charter. According to the Report of the African Commission on Human and Peoples’ Rights, Equatorial Guinea had eleven overdue reports.
Many commentators have labelled Mann as a ‘mercenary’. So far, no court of law has found him guilty of being a mercenary. In fact, an application of the definition of a ‘mercenary’ in the 1977 Organization of the African Unity/African Union Convention on the Elimination of Mercenarism in Africa (Mercenary Convention) does not appear to make him one. According to article 1 of the Mercenary Convention (of which Equatorial Guinea is a party, having ratified it on 12 December 2002), a mercenary is a person who:
- Is specially recruited locally or abroad in order to fight in an armed conflict;
- Does in fact take direct part in the hostilities;
- Is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict material compensation;
- Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
- Is not a member of the armed forces of the said state.
It is a fact that Mann never took direct part in any hostilities in the Equatorial Guinea, although he might have been specially contracted to overthrow the government of Equatorial Guinea, a fact yet to be determined by an Equatorial Guinean court. At the time that Mann was arrested Equatorial Guinea was not experiencing an armed conflict. Furthermore, there was no proof that Mann intended to fight in an armed conflict. The Mercenary Convention does not mention the overthrowing of a government as one of the cumulative definition aspects of a ‘mercenary’.
It will be interesting to see what will become of Mann in light of the report by Amnesty International which identified “a trial with too many flaws” after an invitation was extended to it by the Equatorial Guinean Authorities to observe the trial from 23 August to 26 November 2004 involving those who were allegedly acting in concert with Mann. A happy outcome for Mann seems unlikely indeed. The extradition of Mann from Zimbabwe to Equatorial Guinea can, at best, be described as the most unpleasant journey for the so-called ‘Swashbuckling Old Etonian Mercenary’.
Sabelo Gumedze, Senior Researcher: Security Sector Governance Programme, ISS Tshwane (Pretoria)
