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South Africa flouts rule of law with Al-Bashir incident

At some point before or during the 25th African Union (AU) summit held in Gauteng during June 7-15, the South African government crossed an extremely dangerous line. The executive took a decision to override any judicial actions that might occur during the course of the event, or afterward, and imposed a political solution.

Omar Al-Bashir, Sudan’s president and alleged war criminal, was in the country to attend the AU summit in Sandton, and faced the prospect of South Africa being forced to comply with its obligations under the Rome Statute – that established the International Criminal Court (ICC) in 1998 – to arrest him for alleged war crimes.

This prompts the question: who had taken the decision to allow him to enter South Africa while possible arrest was hanging over his head? It subsequently emerged that the call went right to the top: South African President Jacob Zuma at some point clearly provided the AU leadership with an undertaking that he would not allow Mr Bashir to be arrested in South Africa, in the full knowledge that at least one non-governmental organisation (NGO) – the Southern Africa Litigation Centre (SALC) – was ready to go to court to demand Mr Bashir’s arrest.

AU President Robert Mugabe confirmed this undertaking, with the Zimbabwean president stating on the record that Mr Zuma had informed him of the impending legal action by an NGO. That demonstrates quite clearly that Mr Zuma gave an undertaking that he would ignore South African courts and ignore any arrest warrant the courts may issue.

That action has severe implications for the rule of law in South Africa and for the separation of powers critical in any democracy. The line that was crossed may signal a point of no return. At its most basic level, the political system directly interfered in a matter that was being adjudicated by the courts and effectively usurped the power of the courts to decide on a matter, superseding a judicial decision with a political one.

That is about the largest red flag that South Africa’s young democracy has seen to date. To reinforce its contempt for the courts, the South African government disregarded a High Court order instructing it to prevent Mr Bashir from leaving the country, and he left from a South African air base in full view of local media, without his name on a passenger list and without the crew filing a flight plan. None of that is possible without the full collusion of top local authorities.

The South African government said on Tuesday, June 16, that it would investigate the circumstances surrounding Mr Bashir’s departure. “We will also comply with the court order relating to submission of an affidavit outlining these circumstances,” the government said in a statement. That ‘investigation’ should lead straight to Mr Zuma – but we wait to see. It is more likely that (once gain) some junior, low ranking officials are going to carry the can.

Mr Bashir’s unsavoury and undignified scuttle out of South Africa was not possible without the highest level of co-operation, of the kind Mr Zuma had already promised Mr Mugabe. Red herrings were everywhere, with the credibility and legitimacy of the ICC under constant attack from the ruling African National Congress (ANC) and its strange bedfellows in the shape of paid Sudanese government consultants gracing local news media with allegations of anti-African bias and untrustworthy indictments at the ICC.

The ICC certainly faces all those allegations and charges and most have merit. The ICC is a flawed, skewed, and often incompetent instrument in need of serious revisions – but all that would have been good points to raise before South Africa not only signed up but incorporated the Rome Statute into domestic law.

The fact is, notwithstanding the faults and failings of the ICC, notwithstanding the fact that Israel, the US, China and Russia, among others, are not ICC signatories, and notwithstanding the claims of diplomatic immunity under current obligations, South Africa’s executive was duty bound to arrest Mr Bashir the moment he landed at OR Tambo International Airport. The truth, or otherwise, of claims that South African peacekeepers in Sudan were held hostage, intimidated, or even merely slightly harassed is yet to emerge, but if those claims are at all true then other issues and alternatives need to be explored.

T/he Sudanese president may or may not be a war criminal, although if he is not, he might have emulated his Kenyan counterparts who resisted calls to quit the ICC and instead faced their accusers. However, his actions and the ongoing tragedy in Darfur – where Sudanese government-backed Janjaweed (devils on horseback) have killed, maimed and displaced tens of thousands of people – are different issues to the actions of the South African government.

Mr Bashir’s guilt or innocence, the reasoning that allowed him into South Africa in the first place, and the political and diplomatic fallout of a dangerously amateurish foreign relations agenda are not the issues. The line that was crossed and the potential point of no return for South Africa’s democracy was the direct interference by the executive in matters residing in the domain of the judiciary in clear disregard for the consequences and implications of that action.

The subsequent disregard and clear contempt of court rulings compounded the trampling of the rule of law and constitutional requirements. The potential of a rampant and unaccountable executive riding roughshod over judicial independence and imposing political outcomes on matters that require judicial adjudication – and so continuing its pattern of open contempt for court rulings it does not like – spells grave danger.

 Gary van Staden (Senior Political Analyst)

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