We have reached a new low. Whatever the inquiry into “the circumstances under which” Sudanese President Omar al-Bashir left South Africa on Monday discovers, the reality is our government has been complicit in this act of total disregard for the rule of law.
We cannot be blamed for not holding our breath awaiting the outcome of the inquiry. Similar investigations in the recent past have turned out to be badly executed cover-up jobs, with a low-key bureaucrat or two ending up as the fall guys.
In this case, even if the government’s affidavit to the court identifies this or that official at Home Affairs, or in the Defence Department, as the culprit, it will not take away from the fact that once the court ordered al-Bashir should not leave South Africa the state should have done all it could to comply.
By not doing so, President Jacob Zuma’s government has opened itself up to accusations of contempt of court and has sent a terrible message to its citizens and the world – the rule of law is not sacrosanct in this country.
The poor handling of the al-Bashir saga has undermined what is, politically, a sound and reasonable position of the African Union and our government on the Sudanese conflict.
Let’s put aside the debate on whether the International Criminal Court unfairly targets African leaders for prosecution while turning a blind eye to atrocities committed by leaders in wealthier nations, and focus on the Sudanese conflict.
Al-Bashir clearly has a case to answer for the human rights atrocities that have taken place under his watch. But should the desire to have him brought before the international courts trump the need to bring about peace and stability in that region?
If, for argument’s sake, we had had the ICC in the late 1980s, would we have preferred to have presidents PW Botha or FW de Klerk taken there for apartheid crimes instead of engaging in talks with Nelson Mandela and the ANC that eventually led to the birth of the new South Africa?
I suspect many of us here would agree that, unpalatable as it is that apartheid leaders were never punished for their crimes, achieving peace and freedom for all was more important.
At the time the ICC issued a warrant of arrest for al-Bashir, African-led and UN-backed peace efforts were just about to deliver good results in Sudan with the resolution of the conflict between north and south.
South Africans, most notably former president Thabo Mbeki, played important roles in the process that led to South Sudan finally achieving freedom from al-Bashir’s north.
Handing al-Bashir over to the ICC at that time would have put paid to the peaceful transition process.
It would have also jeopardised efforts to bring about stability within (north) Sudan itself.
South Africa, through a UN-AU mission, has hundreds of police and army personnel deployed in the troubled Sudanese region of Darfur. That has brought relative peace to the region and having al-Bashir arrested would probably have led to those soldiers being kicked out and Darfur being militarily targeted in retaliation.
Coupled with these deployments is an AU-led process aimed at bringing all the warring parties to the negotiating table in the hope of reaching a lasting political settlement in Sudan.
So far, the AU strategy has yielded more positive results than those preferred by countries that believe the only solution is to have al-Bashir jailed.
Ironically, some of those who prefer the latter refuse to have their own countries subjected to the authority of the ICC.
But that is a matter for another day.
With this background in mind, and given South Africa is a signatory to the Rome Statute on the ICC – and, therefore, duty-bound to arrest anyone against whom the court issues a warrant – why did this government put itself in this unenviable position?
In 2009, ahead of Zuma’s first inauguration as president, the government had told al-Bashir not to come here because, by law, it would have to arrest him.
It should have taken the same approach this time around, not-withstanding he was coming here as a guest of the AU and not of South Africa.
It was short-sighted of our government to take a risk on such an important matter because, either way, it would end up losing.
Abiding by the court’s decision to detain and hand over the Sudanese president would have caused South Africa a major diplomatic crisis ranging from being isolated by AU member countries, and as a result losing its status as an African power broker in the eyes of the world, to putting our troops in Sudan at risk.
On the other hand, ignoring our legal obligations – as well as not ensuring a court order was enforced – will cause irreparable damage to the government’s reputation when it comes to upholding the rule of law.
The only solution would have been for Zuma to tell the chairman of the AU Commission, Nkosazana Dlamini-Zuma, she should not let al-Bashir set foot on our soil.
S'thembiso Msomi wrote this article for The Times
Al-Bashir – the day rule of law was betrayed
We cannot be blamed for not holding our breath awaiting the outcome of the inquiry. Similar investigations in the recent past have turned out to be badly executed cover-up jobs, with a low-key bureaucrat or two ending up as the fall guys.
In this case, even if the government’s affidavit to the court identifies this or that official at Home Affairs, or in the Defence Department, as the culprit, it will not take away from the fact that once the court ordered al-Bashir should not leave South Africa the state should have done all it could to comply.
By not doing so, President Jacob Zuma’s government has opened itself up to accusations of contempt of court and has sent a terrible message to its citizens and the world – the rule of law is not sacrosanct in this country.
The poor handling of the al-Bashir saga has undermined what is, politically, a sound and reasonable position of the African Union and our government on the Sudanese conflict.
Let’s put aside the debate on whether the International Criminal Court unfairly targets African leaders for prosecution while turning a blind eye to atrocities committed by leaders in wealthier nations, and focus on the Sudanese conflict.
Al-Bashir clearly has a case to answer for the human rights atrocities that have taken place under his watch. But should the desire to have him brought before the international courts trump the need to bring about peace and stability in that region?
If, for argument’s sake, we had had the ICC in the late 1980s, would we have preferred to have presidents PW Botha or FW de Klerk taken there for apartheid crimes instead of engaging in talks with Nelson Mandela and the ANC that eventually led to the birth of the new South Africa?
I suspect many of us here would agree that, unpalatable as it is that apartheid leaders were never punished for their crimes, achieving peace and freedom for all was more important.
At the time the ICC issued a warrant of arrest for al-Bashir, African-led and UN-backed peace efforts were just about to deliver good results in Sudan with the resolution of the conflict between north and south.
South Africans, most notably former president Thabo Mbeki, played important roles in the process that led to South Sudan finally achieving freedom from al-Bashir’s north.
Handing al-Bashir over to the ICC at that time would have put paid to the peaceful transition process.
It would have also jeopardised efforts to bring about stability within (north) Sudan itself.
South Africa, through a UN-AU mission, has hundreds of police and army personnel deployed in the troubled Sudanese region of Darfur. That has brought relative peace to the region and having al-Bashir arrested would probably have led to those soldiers being kicked out and Darfur being militarily targeted in retaliation.
Coupled with these deployments is an AU-led process aimed at bringing all the warring parties to the negotiating table in the hope of reaching a lasting political settlement in Sudan.
So far, the AU strategy has yielded more positive results than those preferred by countries that believe the only solution is to have al-Bashir jailed.
Ironically, some of those who prefer the latter refuse to have their own countries subjected to the authority of the ICC.
But that is a matter for another day.
With this background in mind, and given South Africa is a signatory to the Rome Statute on the ICC – and, therefore, duty-bound to arrest anyone against whom the court issues a warrant – why did this government put itself in this unenviable position?
In 2009, ahead of Zuma’s first inauguration as president, the government had told al-Bashir not to come here because, by law, it would have to arrest him.
It should have taken the same approach this time around, not-withstanding he was coming here as a guest of the AU and not of South Africa.
It was short-sighted of our government to take a risk on such an important matter because, either way, it would end up losing.
Abiding by the court’s decision to detain and hand over the Sudanese president would have caused South Africa a major diplomatic crisis ranging from being isolated by AU member countries, and as a result losing its status as an African power broker in the eyes of the world, to putting our troops in Sudan at risk.
On the other hand, ignoring our legal obligations – as well as not ensuring a court order was enforced – will cause irreparable damage to the government’s reputation when it comes to upholding the rule of law.
The only solution would have been for Zuma to tell the chairman of the AU Commission, Nkosazana Dlamini-Zuma, she should not let al-Bashir set foot on our soil.
S'thembiso Msomi wrote this article for The Times
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