Home | Comment & Analysis    Tuesday 16 June 2015

South Africa’s ruling ANC disgraces itself


By Eric Reeves

This morning (June 15, 2015) Omer al-Bashir, President of Sudan, was allowed to leave South Africa despite a pending arrest warrant from the International Criminal Court charging him with multiple counts of genocide and massive crimes against humanity. Since South Africa is a party to the Rome Statute that created the ICC, the government of South Africa was legally obliged to surrender al-Bashir to the Court’s jurisdiction. That agents of the government failed to do so not only violated South Africa’s international legal commitments, but its own constitution: the government’s decision to allow al-Bashir to fly back to Khartoum defied a court order that would have obliged a legal review of South Africa’s treaty obligations in light of al-Bashir’s presence in the country. The order, following an application from the Southern Africa Legal Centre, was issued specifically to prevent al-Bashir’s departure before a judicial review of the applicant’s arguments (the court documents may be found here).

Many around the world—including many who stood by South Africa and the African National Congress of Nelson Mandela during the dark days of apartheid—are shocked and dismayed at the decision by the ANC, as the governing party, to side with an indicted génocidaire over the fully justified claims of international justice. This disgraces Mandela’s legacy, reveals the ANC and President Jacob Zuma in particular as falling further into the pit of political corruption and disregard for the rule of law, and tarnishes South Africa’s international standing. It should be noted as well that there was strong opposition to al-Bashir’s presence in South Africa, coming from many of the country’s human rights and civil society organizations, as well as journalists and academics.

This shameful episode also brings into high relief the character of the African Union, whose summit al-Bashir was attending. Over the past thirteen years, an organization nominally representing an effort to do away with the corruption and political high-handedness that defined the old Organization of African Unity has largely reincarnated those very failings. It is little more than another “old boys” dictators’ club, with Robert Mugabe of Zimbabwe as its all too representative president. As many in Africa and outside the continent have observed, the African Union seems much more interested in furthering various political interests (including self-preservation) than human rights and the concerns of ordinary citizens of the 54 countries that make up the AU.

The AU leadership, specifically the African Union Peace and Security Council, has actively encouraged contempt for the ICC, and has declared that ICC jurisdiction does not apply to African countries, even those that have signed the Rome Treaty. There are efforts within the AUPSC to have all African countries withdraw from the Rome Treaty en masse. This increasingly hostile attitude is the primary reason Sudan’s president has been able to travel so widely internationally in African countries, several Arab countries, and other countries as well (e.g., China, Iran). Most of those to which al-Bashir has traveled are not party to the Rome Statute, although some—Kenya and South Africa, for example—are.

Understanding this, the South African government reportedly offered al-Bashir “back-door” immunity from ICC arrest, promising him behind the scenes that he would not be seized while in South Africa. Evidently not much thought was given to the prospect of having to engage in unconstitutional acts, including defying the country’s judiciary, in order to make good on this promise. But we may also be certain that the leadership of the Africa Union knew full well what was going on behind the scenes, and saw no problem in encouraging any illegal activity that might occur. The AU leadership’s growing contempt for the ICC as an institution has become de facto “African policy.”

Such open flouting of constitutional obligations by the ANC government is a terribly destructive consequence of the decision not to arrest al-Bashir. Moreover, we must consider that this destructiveness was understood in advance, and accepted as the price to pay for hosting the 25th African Union summit. Pushback from the court system was immediate, but as of this writing al-Bashir has already landed in Khartoum amidst quickly orchestrated pomp and celebration.

The “Independent On Line” (June 15, 2015, South Africa) gives us a sense of the crisis created by the ANC-led government:

The High Court in Pretoria has demanded an explanation as to why Sudanese President Omar al-Bashir was allowed to leave South Africa on Monday, despite an interim court order barring him from doing so. “We request an affidavit to be filed with the registrar of this court within seven days, disclosing the time when he left, the port of entry or exit that he used,” Judge President Dunstan Mlambo told the government’s legal counsel, advocate William Mokhari. “It is of concern to this court that it issues orders and then things just happen in violation of those orders. Be that as it may, that is an order we issue under the circumstances.”

It is difficult to estimate the damage done to the South Africa’s traditional respect for the rule of law and the ICC itself with this egregious breech of treaty obligations. Certainly the government of South Africa knew that is was creating problems for itself. Indeed, in a last-ditch and desperate effort to insulate itself from those obligations,

on Friday the South African government … asked the ICC for an exemption from its obligation, on the grounds that Bashir enjoyed immunity from prosecution as he was attending an AU summit, and was therefore in the country as a guest of the AU and not South Africa.

But turned down by the ICC, the ANC—the ruling party in the South African government—wanted it both ways: the ANC National Executive Committee declared yesterday (Sunday, June 14) that the ICC was “no longer useful for the purposes for which it was intended,” and that this justified their refusal to honor treaty obligations. “Ask for an exemption—but don’t take no for an answer,” seems to have been the governing thinking.

What would the ANC and the AU put in place of the ICC by way of addressing the need to bring to justice those who commit large-scale atrocity crimes? We got a clear answer last year, at a July 2014 meeting of the AU:

A Pan-African court set up to prosecute the continent’s worst criminals will not be allowed to try sitting heads of state or their cronies after they voted to give themselves immunity. The continent’s leaders agreed [to] their [own] exemption at a closed-door session of an African Union meeting, and then tried to bury the decision in an obscure paragraph of the post-summit communiqué. The decision was a “backward step in the fight against impunity and a betrayal of victims of serious violations of human rights,” said a spokesman for Amnesty International. More than 40 activist organisations had opposed the move. (New Zealand Herald, 3 July 2014)

So much for the birth of the “African Court for Justice and Human Rights.

There is an ongoing debate about the merits of retributive, as opposed to “restorative,” justice. The arguments for restorative justice are not simple, and often reflect both pragmatic attitudes about ending violence and traditional methods of achieving justice through reconciliation of victim and victimizer. But the argument seems wholly inappropriate when speaking about someone like Omar al-Bashir, who is of course protected under the new “African Court for Justice and Human Rights.” Here is a man who has presided for 25 years over a regime that has engaged in serial genocide: in the Nuba Mountains in the 1990s, in South Sudan at various points in the long civil war (1983 – 2005), and now again in Darfur (for the past twelve years) and South Kordofan and Blue Nile states.

There is no imaginable “restorative” justice that is appropriate for dealing with the massive crimes committed by the tyrannical al-Bashir regime. He has been president of Sudan since the military coup that brought the National Islamic Front (later the National Congress Party) regime to power. Millions of lives have been lost in greater Sudan since the NIF/NCP seized control of all military and political power in Sudan; many millions have been displaced, perhaps 10 million civilians altogether; and the country of Sudan has endured a perpetual struggle between the poor, terribly marginalized regions and the center that is Khartoum and riverine Sudan.

If after twenty-five years of war crimes, crimes against humanity, and genocide retributive justice is not called for, then it never will be. But it is irresponsible fantasy to believe that ruthless dictators and military leaders in Africa, if they feel they are insulated from prosecution, will not see this as a license to kill and engage in the most ruthless schemes of self-enrichment. The evidence for this is simply overwhelming, whether we look to Sudan, Chad, DRC and its neighbors, Eritrea, Libya, Zimbabwe, along with many others.

South Africa’s refusal to arrest al-Bashir has moved the continent a step further toward accepting this dangerous fantasy, a fantasy that continues to be assiduously cultivated by the African Union Peace and Security Council for selfish, not principled reasons. This development is inevitably destructive of the ambitions for justice on the part of the ICC, currently led by an African woman, Gambian jurist Fatou Bensouda.

The disgrace, and consequences, of the unconstitutional and treaty-abrogating decision by the ANC government of South Africa will not soon dissipate.

Eric Reeves, a professor at Smith College, has published extensively on Sudan, nationally and internationally, for the past sixteen years. He is author of Compromising with Evil: An archival history of greater Sudan, 2007 – 2012 (September 2012)

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  • 16 June 2015 15:25, by sudani ana

    Eric Reeves

    When we see your murderous ex president George W Bush together with Blair and the child killer Netanyaho in the dock at the Hague ICC, then we would happily surrender Omar Al-Bashir to your fake justice.

    Until then keep your filthy nose out of our affairs.

    repondre message

    • 17 June 2015 07:43, by Akol Liai Mager

      Not Sudani-inta, did you just say Al-Bashir and his thugs have rights to kill Darfurians because Israelis and American have killed people in the Middle East? Bear in mind these things; 1. Escaping from arrest in Pretoria is not the end of the story for your killer fugitive. 2. Eric is a pro life activist who does not discriminate on race or religion unlike you and your likes who take lives.

      repondre message

      • 17 June 2015 11:06, by sudani ana

        So Reeves is a pro-life activist who doesnt discriminate? Is he really? Did you ever hear him protest the massacre of Palastinian women and children by the child killer Israeli apparthied regime? Did he champion the cause of the Rohingea muslims who are being massacred? Of course not. Why? Ask yourself that.

        repondre message

        • 17 June 2015 13:40, by Akol Liai Mager

          Just answer a simple question, does your genocidal regime kill innocent Sudanese in revenge to the killing of Islamic terrorists in the Middle East? You and your NIF’ racist and killers don’t know where Israel and USA are? Your fugitive must prepare for a good run because he will live rest of his life running and his name will remain in a history as the first sitting and fugitive president.

          repondre message

          • 17 June 2015 14:21, by sudani ana


            The answer to your question is ’No’. In civil wars people die and are made IDP’s. Most of those who died in Darfur died due to civil strife and hunger. Now you answer my question, you claimed Reeves is pro life and doesn’t discriminate; have you ever heard him speak out in support of palastinian rights or Rohyngia muslim’s who are slaughtered daily?

            repondre message

            • 18 June 2015 00:24, by Akol Liai Mager

              Nonsense, Criminal al-Bashir was recorded by his own audiences saying these words; "Don’t leave anything standing, no prisoners of war and no green left green". This recording was then leaked to the ICC by one audience who was touched by the suffering of innocent civilians. NIF supporters terrorise streets of Khartoum when Israelis hit HAMAS terrorists and celebrate when NIF militia kill civilians

              repondre message

              • 18 June 2015 00:29, by Akol Liai Mager

                You and your criminal minded NIF’ thugs will soon be unable to kill anyone from Darfur and Nuba Mts because they will soon be Independence Countries and protected by international law. You would dare to ridicule this or ignore it, but you will soon accept the reality as it was in the case of South Sudan. Arabisation and Islamisation programs are no more workable tactics for your evil agenda.

                repondre message

                • 18 June 2015 08:26, by sudani ana

                  Die with your hate man. You’re in no position to moralise to me. Look st your own country, thousands being killed, abducted and raped just for belonging to a different tribe. Gone are the days where you could take the moral high ground, point your finger and say "you did this and nif did that" . Every thing you accuse Nif government of doing, you have done worse.

                  still not answered my questio

                  repondre message

                  • 18 June 2015 09:35, by sudani ana

                    Darfur, Blue nile and South Kordufan will never be independent because they are integral parts of Sudan and their people don’t want to be separated from Sudan, but also because they saw what happened to the South when it separated and then got butchered by SPLA.

                    repondre message

                    • 18 June 2015 09:55, by sudani ana

                      Now go and stand in the line for your food handouts before you starve to death.

                      repondre message

                      • 18 June 2015 13:57, by Akol Liai Mager

                        Not Sudani Inta, that’s the same language you used to use about South Sudan just 9 years ago and now you have an Ambassador in Juba and it won’t be long before you have one in Al-Fashir and Kadugli. The racist’s programs of Arabisation and Islamisation are dead and buried with Dr John.

                        repondre message

                        • 18 June 2015 15:23, by sudani ana


                          Dream on my friend. But rather than dreaming about breaking up my country, why don’t you dream about uniting the pieces of your country. Your people are dying of hunger, 4.5 millions dependent on food aid to survive, and all you dream about is doing the same to my country. what a nasty person you are.

                          repondre message

                          • 19 June 2015 10:15, by Akol Liai Mager

                            We are working hard to make sure that Fugitive Bashir and his NIF are out of our affairs and South Sudan and also, Sudan will enjoy peace and harmony. Even if your killer manage to run away from South Africa, bury in Sudan, his name will still be pursued by the history and the souls of African Sudanese and that’s the point you and your fugitive should be worried about.

                            repondre message

                      • 21 June 2015 05:49, by Akol Liai Mager

                        How so illusive you are Not-Sudani Inta? Do you think everyone is in the Queue if you are on it for food? Even if I happened to be there, then be reminded that it’s your Fugitives and thugs who robbed South Sudan’s resources leaving the owners with nothing. Time will come when a real Sudanese person take over the affairs of the country and put all the killers behind bars.

                        repondre message

                        • 21 June 2015 17:34, by sudani ana


                          Do you mean all the killers, like Kiir and his government? And what do you mean by "Real sudanese" ? Do you mean in a racist sense? What has it got to do with you anyway who rules Sudan. You are not Sudaneste any more, so you just need to worry about your own country and how to feed the 4.6 million hungry South Sudanese.

                          repondre message

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