Al Bashir Has African Union ‘Immunity’

2015-06-21 09:10

On Tuesday this week, South Africa’s Parliament will have a snap debate on the matter involving the International Criminal Court’s (ICC) Warrant of Arrest for Sudanese President al Bashir – the matter of focus will be South Africa’s failure to execute the warrant to hand al Bashir to the Hague.

The debate will not be nourishing as usual but likely just entertaining. It will not be stimulating either nor building as cheap political point scoring speeches loaded with political zingers aimed at grabbing news headlines and twitter trends will be the order of the day. At the centre of the debate, our public representatives will lose sight of the core issues; that we need to find a global balance between diplomatic immunity and human rights.

As expected DA’s Mmusi Maimane will opine about how President Mandela will have handled the matter and will give ideas about this with the authority that even people who worked close with Mandela will find puzzling. South Africa has a number of Nelson Mandela’s shaped in people’s own imagination and dreams, Maimane has a few. Very few stop to ask those who worked with Mandela closely, as to what he would have likely done.

We will also hear Terror Lekota bemoaning the breaking down of the Constitution under President Zuma. Politicking for the western countries will be what the majority of the opposition parties will do as always.

As Africa asserts itself, some within the continent are yet to see the significance of having African solutions for African problems. This does not mean human rights don’t matter. Some will still talk of the lost moral authority “abroad” as a notion of the west and ignore completely that South Africa’s ‘abroad’ starts across the Limpopo, is next to Manguang and Jozini too.

The AU convened an extraordinary summit on 12 October 2013 to debate the future of Africa’s relationship with the ICC. The summit was called in accordance with the rules of Procedure of the AU Assembly after Kenya’s request for such summit received the support of two-thirds majority of members of the AU.

The Summit agreed to: First, ‘to set up a Contact Group of the Executive Council to be led by the Chairperson of the Council, composed of five (5) Members (one (1) per region) to undertake consultations with the Members of the United Nations Security Council (UNSC), in particular, its five (5) Permanent Members with a view to engaging with the UNSC on all concerns of the AU on its relationship with the ICC, including the deferral of the Kenyan and the Sudan cases in order to obtain their feedback before the beginning of the Kenyatta trial on 12 November, 2013.’

Second, Kenya is tasked to request the UN Security Council to defer within the framework of Article 16 of the Rome Statute the trial of President Kenyatta and Vice President Ruto. Accordingly, pending the decision of the UN Security Council on Kenya’s request for deferral, the AU decision accordingly envisaged for the postponement of the trial of President Kenyatta and the discontinuation of Vice President Ruto’s trial.

Third, AU members further decided that ‘President Uhuru Kenyatta will not appear before the ICC until such time as the concerns raised by the AU and its Member States have been adequately addressed by the UN Security Council and the ICC’.

The Summit resolutions clearly granted temporary immunity to al Bashir and South Africa is not the first of the countries he has visited prior to AU Summit and after it.

South Africa ought to realize it is not Africa’s big brother, that it needs Africa more than it needs the west. The future of a glorious Africa is real and irreversible.

A westernized South Africa will be an isolated South Africa. The AU is a very important organ and its decisions cannot just be walked over, especially by South Africa, Nigeria and Kenya. Because international law is about first and foremost world order, the world organs must shape it. In this regard, the AU has said clearly that both Sudan and Kenya cases must be deferred. This is not a legal solution but a political solution to a political problem.

Whilst our members of parliament will be seeking to score points, Africa as a whole will be watching and listening attentively to what sort of Africa are we to have should South Africa get the continent’s nod for a permanent seat on the United Nations Security Council.

In that regard it is very simple. The continent has Libya as exhibit one and the birth of South Sudan as counter exhibit.

Libya is what it is today because the continent waivered to the west and enabled the western way of resolving conflicts to rein.

Al Bashir is not a model citizen; he has blood on his hands. More bloodshed will come from any punitive action in this period of delicate peace building. Deferring any action against al Bashir is a good thing as he has shown to be a useful instrument to building potential peace in the continent.

In my BRICSPOST OP-ED I wrote during the trial that South Africa is obliged to err on the side of caution over the al Bashir arrest. I argued that any arrest after having given all visitors to the AU Summit the requisite immunity, would be regarded as a known entrapment by South Africa, the results of which would not be good for continental peace and order. The disarray to order and Sudan peace will unravel. The South African Police and SANDF deployed would have been in much danger. South Africa would be a target for terrorist attacks and backlash from the AU member states.

After the xenophobic attacks, the last thing South Africa needed is a continent that sees her as having entrapped al Bashir irrespective of the AU decisions and work processes on the matter.

Without a doubt, there would have been be yet another unscheduled heads of state summit called to look punitively at South Africa and the implications of al Bashir’s arrest.

Countries in the world have bombed each other out; others dropped nuclear bombs on innocent people, bad things happen in the world. The good however does not only come from vengeance and punishment. Restorative justice is also a viable option for world peace.

For centuries, diplomatic immunities and human rights have found conflict in international rules. We need a world order that resolves once and for all that is priority and which is not. This remains in dispute. The Vienna Convention requires that the abuse of functional and personal immunity be resolved via functional remedies.

Reading lectures from the likes of Freedom Front Plus about how badly South Africa acted on inviting al Bashir and then not arresting him, you get the sense that indeed jail is not the only method to changing the hearts of those who were once cruel against other humans, but forgiveness too works. Today, Freedom Front Plus is the foremost human rights watchdog, only because they were not prosecuted over their role in apartheid – a crime against humanity.

As we will indeed hear Mandela’s name thrown about, it is important to remind those who will do so that the Mandela I knew would have supported the AU and been in front in calling out the arrest warrants as counter productive especially at this very sensitive time.

The manner in which the debate shapes itself in parliament will either make or unmake a case for South Africa as mild mannered, cool handed leader Africa needs or not.

South Africans need to grow up quickly and lose the silly thoughts of governing being like a cute choices board game. Statecraft means such delicate affairs, as complex as al Bashir’s ‘catch me if you can’ occurring frequently.

At the end of it all, South Africa has a choice, to be part of a united Africa or remain outside of her collective wisdom. The question is, how would Libya be had the African solution to her woes was not pushed aside?

With the al Bashir dash, we won Africa over. We must now invest in it.

South Africa is not exceptional - get over it.

Bongani Mbindwane on twitter @mbindwane

News24 Voices Terms & Conditions.


AB praises selfless skipper

2010-11-21 18:15

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Traffic Alerts

Jobs in Cape Town [change area]

Jobs in Western Cape region

Cluster Financial Manager

Cape Town
Network Finance
R950 000.00 - R1 000 000.00 Per Year

QA Technical Tester

Cape Town Northern Suburbs
Hi-Tech Recruitment - Johannesburg

Reporting Accountant

Cape Town
Network Finance Professional / Prudential
R310 000.00 - R360 000.00 Per Year

Property [change area]

There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.