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Nation’s entire constitutional project is now in jeopardy

THE executive branch of the government has allowed fugitive President Omar al-Bashir to flee via Air Force Base Waterkloof. Now the country finds itself in the invidious position of running with the hare (by supporting Bashir in the face of a court order interdicting his departure) and hunting with the hounds who seek his arrest on grave charges, including crimes against humanity.

This hunting takes the form of our membership obligations in the International Criminal Court (ICC), which SA has recognised in the Rome Statute and has, via legislation, incorporated into our domestic law to, among other things, ensure the efficacy of arrest warrants issued by the ICC.

The courts and the legislature are now at loggerheads with the executive over the decision to let the Sudanese president go home and avoid arrest. The North Gauteng High Court requires an explanation from the government for ignoring its order temporarily interdicting the departure pending full argument.

Not only has a court order been defied, in breach of the rule of law, the statutory framework of national membership of the ICC has been trashed. It is not expected that Parliament will make too many waves about the debacle, with the African National Congress (ANC) having already expressed its criticism of the arrest warrant and the ICC as a whole.

SA is supposedly a constitutional democracy under the rule of law. The Constitution and the rule of law are supreme. Conduct inconsistent with the Constitution is invalid and falls to be struck down by the courts. Allowing Bashir to attend the African Union (AU) summit in Sandton without arresting him the minute he set foot on SA soil has been declared invalid by the high court, which ordered his arrest.

According to Luke Moffett, who teaches international criminal justice at Queens University Belfast, SA has “by allowing Bashir to get away, taken the wrong side. It may be that SA finds itself before the United Nations (UN) International Court of Justice for failing to co-operate with the ICC.”

Certainly the decision to take Bashir’s side has severely prejudiced SA’s chances of being elevated to UN Security Council membership, a goal long sought by those who are serious about the constitutional imperative that SA should “take its rightful place as a sovereign state in the family of nations”, as the preamble to the Constitution puts it.

The decision to allow Bashir to enter SA and the support he apparently received to evade arrest, despite the well-known existence of a court order interdicting his departure, render SA a rogue nation not prepared to honour its international obligations nor to respect the rule of law domestically.

There are those who argue that the ICC is a useless and corrupt entity that European nations have devised to keep their former colonies in chains.

While there may be some force in arguments critical of its organisation and functioning, the fact that SA has deliberately and freely chosen to be a part of the ICC, with 33 other African nations, and has made its obligations towards the success of the ICC a part of our domestic legislation, does not leave SA the option of ignoring ICC warrants of arrest. It is reprehensible to do so and invites criticism that SA is lapsing into lawlessness within a generation of attaining freedom.

Both SA and Nigeria came under criticism from AU chairman Robert Mugabe during the summit for their vote in favour of military action against Libyan dictator Muammar Gaddafi at the UN during 2011. Mugabe said SA and Nigeria were not to be trusted because of the votes so cast.

Contrary to the constitutional value of equality before the law, there is a notion in parts of Africa that sitting presidents and even high-ranking politicians should enjoy immunity from prosecution while in office. In Mugabe’s case, the term of office began as long ago as 1980. A two-term limit is not favoured by Africa’s “big men” and is often dishonoured by those who cannot part with power at the end of their term, as in Burundi at present, Zimbabwe repeatedly and elsewhere in Africa as well.

It is an inescapable fact that the ICC has issued two arrest warrants against Bashir, in 2009 and 2010. These warrants are in respect of seven counts of war crimes and crimes against humanity, as well as three counts of genocide.

The ICC has, in addition, issued co-operation requests in respect of these two warrants to all parties to the Rome Statute, including SA. If SA does not wish to honour the requests and allow the warrants to take effect, it ought to repeal the legislation placing the Rome Statute on SA’s statute book and withdraw from the Rome Statute. Neither of these steps has been taken.

These are fundamental rule-of-law issues. The rule of law is only as strong as the political will of those who are obliged to implement the lawful policies of the government of the day. A lack of commitment to the rule of law has many unintended consequences that do not appear to have been taken into account in allowing Bashir to leave. First, this misconduct on the part of SA’s authorities negatively affects its place in the family of nations. It makes it appear as if SA supports the notion that alleged war criminals ought to be able to survive and thrive with impunity. Second, the possibility of attracting foreign direct investment, indirect foreign investment or any investment at all is dented by the failure to respect the rule of law. Jittery investors, both foreign and local, give greater credence to the prophets of doom when their prophecies appear to be coming true. At a time when four in 10 of those willing and able to work are without jobs, it is an irresponsible shot in the foot for SA to misbehave as it has in this debacle.

Third, and perhaps most important, our entire constitutional project is placed in jeopardy by the failure to hold Bashir until the arrest warrants could be served on him. The role of the rule of law is fundamental to the new order. The impression is created that the executive has no respect for the rule of law and is prepared to compromise on constitutional imperatives when politically expedient. Having fought so long to be free of colonialism and apartheid, South Africans deserve better than to be seen to shield an alleged war criminal.

Before 2007, former president Thabo Mbeki expressed the fear that a Zuma administration would have no respect for the rule of law and be unaccountable to the Constitution, and cynical observers contend that this is now the case. Journalist and historian RW Johnson holds that, under Zuma, “the ANC has actually become more chiefly, more tribal, a giant federation of political bosses held together by patronage, clientelism and concomitant looting and corruption … quite incapable of managing and developing a modern state”. Bashir’s escape with the apparent connivance of the authorities points in this direction. The official explanation for dishonouring the court order is awaited with interest.

• Hoffman is a director of Accountability Now

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