“This is a sad day for South Africa and a blow to the rule of law,” says Anton du Plessis, Institute of Security Studies ISS managing director. “Until now, the country has been a champion of international justice and has done more than most in Africa to make sure victims get justice.” I read the comment with great delight. It came in the wake of the news that Sudanese President Omar al-Bashir, who arrived in South Africa on 13 June to attend the African Union (AU) summit in Johannesburg, has left the country, not arrested.
Truly, the South African government is legally obliged to arrest him, and “competent authorities of the Republic of South Africa” are “aware” of the obligation to do so as stated by the ICC Judge Cuno Tarfusser in an urgent public decision on 13 June. It says: “In the present circumstances, any further reminder or clarification to the Republic of South Africa is unnecessary. In claris not fit interpretatio. Indeed, it is plain from the following that there exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar Al Bashir to the Court, and that the competent authorities Republic of South Africa are already aware of this obligation.”
It added: ” …that the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State have been implicitly waived by the Security Council of the United Nations by resolution 1593(2005) referring the situation in Darfur, Sudan to the Prosecutor of the Court, and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.”
After the ICC, UN Secretary-General Ban Ki-moon added his voice to condemn the South African government’s failure to act, saying that signatories to the ICC’s Rome Statute must carry out the warrant for Bashir’s arrest. This is in addition to various similar calls on the home front.
Every bit of the condemnation seems in place except for the non-consideration of the South African government’s dilemma at this point in time. As long as we expect South Africa to perform a committed duty to bring al-Bashir to book, I’m sure it would think about what would become of his stance in the continent it calls home. More so as not all African countries are on the same democratic footing with South Africa -in fact, some countries are not in any way close – they will find it difficult to accept the country’s action for many years.
If you follow comments online – Africans expressing their views about the situation – you may be forced to ask if the people are daft and if they really understand that the effort to arrest al-Bashir is for the good of Africa. But on the other hand, I think this is where a true concept of a unionized Africa will come from because I have seen that some key actions of African governments are now shifting to reflect the views of ordinary people they represent if only such energy could be harnessed properly. I take time to read more comments than stories these days, especially on forums that hold sway in shaping key happenings around Africa, and I think most Africans don’t want al-Bashir arrested in South Africa. Some don’t even care if he gets arrested now.
Timing should also be given utmost consideration. We all know that this is not the best of time for the South Africa – other African countries’ relationship following the xenophobic attack and the recent implication in a FIFA scandal. Though not impossible, it may be considered inappropriate to jump into another controversy (self-courting this time) while trying to please a somewhat non-credible cause.
I still maintain that the rippling effects of debates surrounding the prosecution of more Africans (including former leaders) by a court which is supposedly meant for the entire world need to be carefully abated to win the hearts of many Africans. We want justice in all ramifications but the pattern the war against injustice has taken right from the onset seems to have focused on Africa which is quite troubling. Obliquely, Nigeria is still paying for turning over Charles Taylor.
Al-Bashir isn’t a leader to vouch for and I feel sad that he is gradually slipping away from justice. My greater fear, now that his case has gradually become a test ground for the unvoiced battle between the AU and ICC, is that he may never be tried very soon when the purpose of the cause hasn’t been defeated. The ICC wins if and when it succeeds to have the Sudanese leader in its pouch. Until then, it seems the AU is saying it still has the upper hand.