Use Al-Bashir saga to leverage ICC reforms

Now that President Omar al-Bashir is safely ensconced in his Sudanese capital, it is time we had a sober debate about his "flight" from South Africa after attending the African Union summit.

To put the record straight, al-Bashir did not clandestinely sneak into South Africa. He was officially invited by the African Union and SA hosted the AU summit.

President Robert Mugabe has since gone further to confirm that the SA government had guaranteed al-Bashir's immunity.

So it defies all logic that he "sneaked" out of SA to escape arrest. The rest is history.

The responses of the UN secretary-general, the International Criminal Court (ICC) and the SA judiciary are now well documented.

What seems to be lacking now is a sober political or intellectual discussion.

Vociferous political posturing and fundamentalist legal opinions have not been helpful in a matter as serious as this one.

Our Bill of Rights holds the value of human life as sacrosanct. Our human rights culture can only succeed by strict adherence to the imperatives of our world-acclaimed constitution.

Whatever the imperialist agenda and machinations may be, Africa cannot condone the butchery of 300000 black Africans in Darfur, as well as the displacement of millions of innocent people, most of them poor and defenceless.

Apart from the immorality of such an act, far too many Africans have lost their precious lives over the past four centuries.

Whatever the nature of the conflict in Darfur, we cannot turn a blind eye to the horrendous massacres in Darfur.

Because al-Bashir's regime was associated with the tragedy, we could not welcome him to South Africa with a bouquet of red roses.

Closely linked to this observation is that SA is a signatory to the Rome Statute that gave birth to the ICC.

Like most African states we signed because we wanted an Africa in which democracy reigned supreme for the good of all people. We wanted peace and development.

It was a tacit acknowledgement that there were too many tinpot despots who wanted power for themselves, their families and their tribes at all costs.

They wanted to loot state resources and violated human rights with impunity. To protect our people we joined the ICC in good faith because the AU was too compromised and divided to bring perpetrators to justice.

The people who signed on our behalf were not stupid, but they must have been uneasy that some of the big countries refused to sign. These included the US, China, India and others. Some of these have committed serious international crimes.

Without in any way exonerating the behaviour of African criminals, the AU quite rightly started to question the fairness of the ICC. It began to look at the gross violation of human rights by some big countries.

The brouhaha about al-Bashir's presence in SA must be debated within that broader geopolitical moral context.

Now I turn to SA's handling of this delicate matter. Here is the "legal lacuna". To give some examples, the ICC would have been naïve to oblige all signatories to apply its prescripts literally and blindly.

The great Roman Cicero once said "Omnes leges sunt interpretandae" (All laws or policies must be interpreted). In other words, the application of any law should never ignore the prevailing circumstances or situations where an offence was committed.

In this instance, SA had to consider two critical factors: first are the political consequences of arresting al-Bashir after it had granted immunity to all heads of states attending the AU summit on its soil.

Second was its own attitude towards the UN Human Rights Council's hypocrisy and double standards in the dispensing of international justice.

For many SA analysts, the most awkward aspect of this drama was how to justify the government's apparent disrespect of our own constitution when it ignored the ruling of a high court.

But the executive must have weighed the pros and cons of the situation and settled for a Machiavellian option, or even indulged in some casuistry.

In future, it would be helpful for the executive to be helped by independent advisers who draw no salary from the government. In any case it would not have been easy for SA to defy the AU position on the ICC. As a country, we are not loved by all AU members.

They may need our resources, but they also know we need the support of the rest of Africa in our geopolitical ambitions.

It is ill-advised for SA to sever its membership of the ICC because of this one incident.

SA as a sovereign state is highly respected internationally. Who knows? Perhaps the al-Bashir saga might be used to leverage real reforms in the modus operandi of the ICC, or to establish an effective African counterpart to the ICC.

As a leading country in Africa, it would be inconceivable that we can once again host a fugitive from ICC justice.

The issue is no longer about legal niceties. It is about moral principles and values.

lMkhatshwa is chairman of the Moral Regeneration Movement