Eusebius McKaiser examines six shockingly bad defences used to justify letting Omar al-Bashir get away.
Johannesburg - Sometimes there is just no gentle way of responding to ridiculousness. Many South Africans, including the ANC, but also South Africans who are not members of the ANC or any other party, have come up with bad reasons why it was a good thing for Sudanese president Omar al-Bashir to be allowed to run away to his country before we could arrest him here in South Africa.
Let’s examine the defences that popped up:
Defence 1: “The ICC is biased so we can ignore the arrest warrant!”
Let’s assume, for the sake of argument, not only that the International Criminal Court is biased, but that it is a despicable court out to protect the West and to hate on Africa. Let’s falsely assume further, just for fun, that the court has never and would never ever prosecute a white man or anyone from Europe - even including Eastern Europe - and that it exists solely to find Africans to scapegoat for wars committed across the Milky Way.
Is that a good enough reason to have let Bashir leave, despite a court order that asked the state to keep him here pending a final court hearing on the matter? No. And the reason is breathtakingly simple.
We cannot afford to allow the South African state to mess up the separation of powers by ignoring the authority of court orders. This is tantamount to sanctioning a lawless state and government impunity. It is trampling on the rule of the law, and it is as good as burning the constitution itself. If, in turn, we are not interested in having a law-abiding state, how the hell do we hope to ever have citizens who routinely obey the law or comply with court orders?
The state must role model what it means to take court judgments seriously. This past week was a vicious assault on the very principle of constitutional supremacy, just to prop up a war monger. What a ridiculous price to pay: messing up the rule of law and in exchange getting …. Getting what, actually? Getting to say you helped a man escape who needs to answer for war crimes he possibly committed? If he’s innocent, why fear legal processes anyway?
Defence 2: “Why doesn’t the ICC go arrest him in Sudan?”
They can’t because Sudan is not a signatory to the Rome Statute. It would be illegal for them to do so. We signed that treaty. Not them. Not only did we sign it, we even domesticated it into our own law. This means it is now South African law that wecomply with the ICC’s request that we arrest Bashir. In effect, South Africa broke its own laws by failing to arrest him.
If South Africa didn’t want to arrest him we needed to first get out of the treaty using the necessary legislative processes to do so. We didn’t. So any moral or political critiques of the ICC are utterly irrelevant to our legal duties.
Only someone who thinks being law-abiding isn’t important would be fine with the idea of the state ignoring a law now and only repealing it later. This is a shockingly inconsistent commitment to the rule of law, and demonstrates at best a capricious commitment to a set of values that can be whimsically changed when convenient and expedient.
I don’t want to live in a society with such scant regard for legal rules. I hope no one else does either, regardless of what you think politically or morally about the ICC or the global system of governance being unjust. Put the rule of law first. The apartheid government didn’t. Let’s live up to the normative standards we set ourselves in 1994.
Defence 3: “First arrest George Bush and Tony Blair!”
This one really is bizarre. Even political analyst Adam Habib was punting it on Twitter, but it was after midnight so maybe he was tweeting after a night of fine dining. Look, firstly, we don’t only arrest one rapist if, and only if, we can find all rapists. Law rightly doesn’t work like that. You work towards maximum consistency in your legal system continuously in order to increase and maintain its legitimacy. But one thief can’t be let off the hook until all the others are arrested.
But while we all lobby for criminal justice systems to be more fairly, consistently and regularly applied, we don’t ask for no arrests to be made when we do know of someone who needs to answer a case before the court. Obviously not. Jeez, imagine the impact on law and order if the condition for bringing a suspect before court is that it can be done only once other suspects are before the court too? That is daft.
In no society is the legitimacy of the legal system fatally flawed if justice is not yet administered with complete perfection.
Now remember also that we are talking here not about ICC inconsistency but about the South African judicial system. Why? Because that is what it means for a Treaty to have been incorporated into our domestic legal system. If we currently want police to arrest a suspected rapist and let him answer before a court even while others are not yet arrested, why are you asking us to first arrest Blair or Bush before we can arrest Bashir?
That’s just not convincing. Until there is a warrant of arrest issued for Bush and Blair, this point is moot.
At any rate, there is no warrant of arrest out for Blair that we are legally duty-bound to assist with if he comes to give a speech in Sandton. What domestic South African law compels the state to do so? Political responsibility for the war in Iraq is very different to domestic South African law requiring us to arrest Blair. The Blair-Bush-Bashir analogies are badly thought through.
But the most important problem, finally, with this defence, is that it tells us that we should take our cue from the Americans and the Brits when we decide what to do. So if America and Britain behave like lawless thugs, or refuse to be subject to accountability mechanisms for atrocities that their leaders or citizens committed, then we should be equally disinterested in justice for victims.
That is setting the bar for leadership accountability shamefully low. Why should we take American thuggery as the model to emulate?
Defence 4: “South Africa would have lost diplomatic face!”
I’m sorry fellow citizens, but the African Union has been useless for years now - like its predecessor the Organisation for African Unity - in demonstrating that “African solutions for African problems” isn’t just an aspiration but a feasible, demonstrable plan for policing, rehabilitating and developing our own.
Wars still ravage the region; dictators abound and are not held accountable by peers in the AU, and meanwhile tens of thousands of citizens in many countries remain victims of the worst violations of human rights, routinely. And this is not even to talk about the developmental lag in most countries.
We do not have a standing regional rapid response unit that can quickly step in to ensure that innocent citizens are protected once a regime turns on its own people. And we do not have an alternative to the ICC that is based on the continent where we can try leaders accused of war crimes if they do not have the legal capacity in their domestic legal systems to ensure justice for victims, given the prosecutorial complexities of war crimes.
So, if the AU suffers from these problems, and other ills like constant resource-shortages, then the diplomacy defence of Bashir is simply disingenuous. How can we lose face when the regional body itself lacks credibility and has no impressive track record dealing with crises here? We only lose credibility diplomatically if the AU is a body to already be proud of. But it isn’t, and so I fail to see why President Jacob Zuma would have reason to be embarrassed if some AU members had to cry if we arrested Bashir.
This thing of citing the diplomatic card, as if doing so constitutes an argument, doesn’t wash. If anything, arresting Bashir was a chance to set a new standard which could have become Zuma’s legacy, one upstaging Thabo Mbeki’s quiet diplomacy-cum-renaissance-intellectualism.
For the diplomacy defence to be slam-dunk, the proponent of this defence must spell out for what happens now that Bashir isn’t going to the ICC. What’s the alternative legal adjudication mechanism, in Sudan or on the continent, that will guarantee that justice is done and seen to be done?
Diplomacy that blocks legal and political accountability isn’t worth defending.
Defence 5: “Law isn’t everything!”
It is very sad to see so many people thinking that if the state ignores the law, that that isn’t a bad idea. I have already made reference in my responses to other defences of Bashir’s escape that legal duties matter.
Some defences have explicitly focused on the rule of law and constitutional supremacy, suggesting that the constitution is a political text and as a living document, we can change it as we see fit. So why bang on about this arrest warrant thingy, they ask?
As I pointed out earlier, laws can’t be changed or amended after you have committed a wrongdoing to accommodate your wrongful act. A legal system isn’t like my arm that can be fixed if I fall and I crack it.
The health of the legal system is much more precariously a function of how many of us – citizens, the state, corporates, other legal persons. – choose to respect the system. The system’s legitimacy is at our mercy. The more we diss it, ignore it, inconsistently comply with the orders of the court, the more the authority of the judiciary is undermined.
In the worst case scenario, that means a legal system that doesn’t function and, in turn, a state, will be unable to guarantee security nor citizens able to exercise their rights.
Now let’s not exaggerate, of course. Bashir’s escape won’t by itself have that impact. But the cumulative effect of unlawful actions, and failure to comply with court orders that seek to remedy laws that were broken, will eventually have that effect.
That is why the willy-nilly refusal to comply with a court order is a very dangerous thing that we shouldn’t make light of. And not even the promulgated diplomacy granted to Bashir side-steps the violation of the rule of law, because that argument was hit out of the park for a giant six by a full bench of the high court which must be respected.
Active citizens will know of examples of state failure to comply timeously and faithfully with court orders. Already. Section 27, for example, have had to fight for years to get the SANDF to comply with a court order to stop discriminating against soldiers who are HIV positive.
There are many examples of litigants having to go back to court, after celebrating a victory for social justice, to then get the state to actually play ball and comply. If we as citizens give the state the space to choose when to comply with court orders, we are opening the floodgates for more routine non-compliance.
What will you say if the court refuses to comply with an order to dispense textbooks to Limpopo, say? By then the erosion of the rule of law will be normal. Is that what we want?
Defence 6: “Who the hell is the Southern African Litigation Centre?!”
Who cares about the history of the Southern African Litigation Centre? Whether they existed for years or one week, I could not give a rat’s behind. And any focus on their board members, their donors or their motives are misplaced for several reasons.
First, if someone or an organisation has legal standing in court, then they have the lawful prerogative to bring a case before court if they want to. If the case has merits, then society should thank them for the litigation. If it doesn’t, then they will lose the case and life goes on. Why obsess about them at all?
In this particular case we all owe the SALC a huge thank you. They are an exemplar of civil society excellence and vigilance. Either state action is lawful or it is unlawful. If it is unlawful, then it is a good thing to have the unlawful actions nipped in the bud by a court of law. If a civil society organisation decides to go to court, like it did in this case, and the court agreed that the state had a legal duty to arrest Bashir, why hate on the SALC?
Anyone dissing the SALC are an enemy of one or two things (or both): active citizenship and constitutional supremacy. If you value active citizenship, including the many unsung heroes in our civil society organisations operating on shoestring budgets, then you should write letters to the press praising the SALC rather than asking red herring questions about their motives.
If you value constitutional supremacy, then you should be hugely upset that our government violated our own constitution. The court made it clear that the state had a duty to arrest Bashir even if civil society had not brought this case before it.
And if you do not value constitutional supremacy, then I am afraid there’s nothing I can say to you about your anti-democratic tendencies. Clearly, such a celebration of Bashir’s fleeing, with the collusion of someone in the South African state, sends the additional message that black lives, this time in Darfur, do not matter.
Bashir, lest we forget, stands accused of playing “an essential” role in the torture, rape, murder and displacement of civilians, including an attempt to exterminate the Fur, Masalit, and Zaghawa ethnic groups. This constitutes a charge of genocide. How do those cheering in favour of Bashir’s fleeing feel about the victims of state-aided war crimes on our continent?
Many in the West would agree Sudanese lives don’t matter. After all, black lives don’t matter in the United States. Are defenders of Bashir happy to share many Western leaders’ disregard for justice for African victims?
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma
** The views expressed here are not necessarily those of Independent Media.