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Max du Preez
It’s a devious but clever strategy: proclaim solemnly to the world, hand on heart, that you will uphold the Constitution at all costs, but then ignore, sidestep and undermine the Constitution whenever it suits you.
The ANC and Jacob Zuma’s government have on several occasions sailed dangerously close to the wind, but has never blatantly defied the courts. They have now crossed that Rubicon by facilitating the escape of Sudanese president Omar al-Bashir in defiance of a clear order by the High Court and so unashamedly showed a thick middle finger to the judiciary and thus the Constitution.
It is the closest post-apartheid South Africa has come to that much talked about concept of a constitutional crisis. Our stability and democracy were built on the rule of law and the supremacy of the Constitution. Weaken those pillars and our country could start crumbling.
We have reason to ask: now that the genie is out of the bottle, what is next? Is it now possible that the ANC and its government will defy the judiciary and the Constitution on more serious matters, such as an order to reinstate criminal charges against Zuma, or even election results?
Constitutional crisis
It is very important what happens next. If the other devious ANC strategy of finding a civil servant to take the blame for a political scandal, firing him/her and then quietly rewarding him/her is used again (like with Guptagate and Nkandlagate), it will indeed be a full-blown constitutional crisis.
It already seems likely that this will be the strategy used. Government said it would “investigate” how Bashir left the country. Hehehe.
We citizens should not allow ourselves to be confused and bamboozled. The crisis is not about the legitimacy or otherwise of the International Criminal Court, not about Bashir’s human rights record, not about the African Union summit.
The issue is that the government of the day had defied a clear court order.
Actually, it not only refused to obey a court order, it appeared to have blatantly lied to and actively misled three judges of the High Court.
This is a very, very big deal.
Don’t be fooled. The police and security machinery knew very well that Bashir was planning to slip the country in contravention of a court order. And, through advocate William Mokhari, its legal representative, the executive appeared to have lied to the court, pretending it didn’t know where Bashir was while the court case was ongoing.
SA can't dodge international obligations
A foreign head of state is always accompanied by local security operatives. Reporters saw them with the Bashir party. What is more, he was taken to Waterkloof Air Base in a convoy of ten vehicles of the South African police and metro police.
Beeld’s military specialist, Erika Gibson, live-tweeted about the convoy and the plane taking off about four hours before the government admitted that he had left the country. Government’s legal counsel told three judges that Bashir’s name was not on the list of departees even after Bashir had left the country, while the people who had briefed the advocate knew very well that he had left.
What is mind-boggling is that the government had told Bashir that he would have immunity if he came to South Africa. A third-year legal student would have told them that they couldn’t dodge their international obligations in any way. In fact, an ICC judge, Cuno Tarfusser, told the South African government ahead of time that there could be no ambiguity or uncertainty about its obligation to arrest Bashir and that any “immunity” granted to him would be null and void.
Pretoria should simply have told Khartoum that it would be safer for their president not to fly to South Africa. They did that on a previous occasion. Why not now?
Was it a deliberate act of provocation? Was it a reaction to pressure from other African states?
We can argue about the legitimacy of the ICC on another occasion; argue about the fairness of indicting Bashir while Benjamin Netanyahu, George Bush, Dick Cheney and other Western leaders have no such worries. If the South African government believed that the ICC had long ago lost its credibility and legitimacy, why did it not withdraw from the Rome Statute?
We can debate all that, but it shouldn’t take our attention away from the fact that our government lied to court and blatantly defied a court order.
African 'pride' vs African lives
I was shocked by the reaction from ANC and EFF ranks to the whole drama. It was obvious that cocking a snook at the "West" was far more important than holding an African dictator with blood on his hands accountable. African “pride” was more important than African lives.
These voices, joined by at least one prominent journalist and several public commentators on social media, seem to say: if we can’t haul Bush, Obama and Co before the ICC, we won’t act against any African leader guilty of crimes against humanity. According to this logic it would follow that if we can’t hold Western leaders accountable for human rights violations, we should also not hold the government and the police accountable for the Marikana Massacre, for example.
Many prominent ANC and EFF-aligned public personalities launched a massive assault on social media asking why Bashir should be detained while FW de Klerk and his cabinet ministers still walk free. Not one of them felt that the more important issue was that our government had defied a direct court order.
Bashir did not simply have opponents tortured and killed. He is charged with criminal responsibility for the crime of genocide after the whole scale killing of members of the Fur, Masalit and Zaghawa ethnic groups.
If even 10 percent of the accusations against Bashir are true, he is a truly evil man. And South Africa just made this man its poster boy for African pride.
- Follow Max on Twitter.
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