We’ll appeal Omar al-Bashir ruling

2015-06-28 15:00

The debate in Parliament on “how Sudan’s president, Omar al-Bashir, was allowed to leave the country” has come and gone. The North Gauteng High Court ruled that the order was broken and investigations should be conducted on those who decided that al-Bashir should leave. The process will now be followed in the norms of our laws.

The judgment has serious implications because it says the law was flouted and the court order disregarded. However, the judgment has its weaknesses.

Firstly, it focused its argument legally only, although it acknowledged that the arrest could have caused instability and tensions elsewhere in Africa.

I fully agree with ANC secretary-general Gwede Mantashe’s expression on the court’s outcome that: “If implemented it will lead to the coup of government and is not easy to implement.”

The government will appeal to the Constitutional Court, as the decision not to arrest al-Bashir was in the best interests of the country.

Unfortunately, the opposition parties (except one) in Parliament were narrow and focused mainly on the legal view.

They played to the gallery on issues of breaking the law, undermining the Constitution and rule of law and disregarding the fundamentals of politics, the complexities of international relations and our own national interests.

We continue to reiterate the ANC position, and our policies remain entrenched in the ethos of human rights. Nations tend to be blinded by their national interests at given times and usually disregard matters of human rights.

We will remain true to our resolve to achieve our goals of a humane, just and equitable society, not blinded by dogma but informed by the concrete and scientific objectives on the ground.

What happened in Sudan is serious. Almost 300 000 people were reportedly killed in war crimes and more than 2 million displaced. We must pursue justice in conditions of peace. Those involved must account and give answers for victims to get restorative justice. Those guilty of any wrongdoing must be brought to book, whatever mechanisms are arrived at.

South Africa faced similar conditions where thousands were killed and massacred, while still others are missing. Our human rights were gravely violated during apartheid. We know what it’s like to be a victim.

We chose a different path – the reconciliation, peace and building of our nation. Perpetrators and instigators of the violation of human rights and apartheid today are living side by side with the victims. It was a difficult choice. We remain committed to pursuing peace and justice in Sudan and elsewhere in Africa.

The ANC has said that the arrest of al-Bashir would have created a precedent, which had never happened anywhere in the world since World War 2: that of arresting a sitting president. 

In the Vienna Convention agreed to in 1961, the instrument is there to assist world leaders, to enable them to attend meetings at the United Nations and other forums, giving them immunity to travel, arrive, attend and depart without any threat of arrest. This included even the most notorious dictators. This international instrument of immunity has guaranteed leaders, who for more than 40 years since the Vienna Convention, were never arrested by a host country. 

South Africa was not going to do it.

The African Union (AU) was established in 1963 and always enjoyed a similar status of immunity as part of the common-law practice by all its members.

While recognising the warrant of arrest on al-Bashir, the South African government published the Government Gazette – for about 10 days – telling the public about the AU meeting it would be hosting and the immunity invocation on it.

No objections were received and, as the AU chairperson’s office informs and invites government and heads of states to its own gatherings – and Sudan is a full member – we were guided by this instrument that is accepted worldwide. Had South Africa invited al-Bashir on a state visit, the matter would have been different.

What guided our decision not to arrest:

The arrest or non-arrest of al-Bashir must be seen not only from a legal view, but while looking at the fact that our leaders had to weigh all aspects.

. Arresting al-Bashir would have jeopardised and damaged the African unity that is a major focus of the AU. Our being African and the entire African agenda was in question. South Africa was going to be faced with hostility, political isolation and marginalisation of the worst kind – which was looming. We saw during the so-called xenophobic attacks how our citizens were threatened and South African businesses closed or threatened in some countries. Our moral voice would have diminished and leadership and guidance would have been compromised, if not crushed. So we chose African unity.

. Arresting al-Bashir would have negatively affected the country’s national interests greatly. Since 1994, our trade and investments in Africa jumped from a mere R40 billion to more than R400 billion. Our investment and trade include retail chains, financial services and banks, mobile telecoms, property, mining and engineering services, as well as goods in shops. The reaction from the continent was going to be devastating, as some of our business operations were going to be forced to close, licences would have been revoked and we would have been boycotted. So we chose the advancement and protection of our national interests.

. We have about 700 soldiers in Sudan as part of the AU and on missions with all our equipment and military hardware. Most of the soldiers are family members, fathers and mothers. They would have been arrested in Sudan for ransom and others probably killed by extremists and fundamentalists, fanning aggression and war. The nation would have been in turmoil. We avoided and averted chaos and a subsequent backlash. We chose to protect the lives of our soldiers and personnel.

. Arresting al-Bashir would have dented our vision of a peaceful continent. Therefore, peace was a factor. For with peace we can develop our continent to become a prosperous one that can pursue justice. With peace comes reconciliation and the restoration of justice for victims. A peaceful Sudan will enable us to settle all the disputed and outstanding issues in the area.

. The non-arrest of al-Bashir was in defence of our revolution. Enemies of the revolution say they were disappointed. But our revolution was saved and we can now walk tall and advance the goals of our revolution. We are not going to irrationally crush our revolutionary gains, including the defence of democracy, our Constitution and our institutions. 

What next? 

. We are asking government to appeal the high court’s decision in the Constitutional Court.

. Government must engage with the International Criminal Court (ICC) to raise fundamental issues of the obsession of only prosecuting Africans, the arrogant display in belittling African leaders and attitudes towards Africa to resolve tensions.

. The ANC and government are working on a reform package to save the ICC from its demise, as it is becoming directionless and being hijacked by powerful nations that refuse to be members. Its credibility is in question and it is being undermined and derailed.

. Voluntary membership of the ICC must change to compulsory membership for all countries. The powers of the UN Security Council to refer cases to the ICC must be removed, as this is a mockery of justice because some countries are refusing to accede to the ICC.

. We reserve the right, like other nations, to suspend or withdraw from the ICC. We went voluntarily and, if the time comes, if our reform package is rejected and if the attitudes and arrogant behaviour continue, we will decide on this.

. We will work hard to ensure the ratification of the African Court of Justice and Human Rights by all countries, including capacitating and resourcing it. South Africa must domesticate it into our laws because our future lies in Africa.

Bapela heads the ANC’s International Relations desk and is a deputy minister

Read more on:    omar al-bashir  |  icc

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