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he de­bate in Par­lia­ment on “how Su­dan’s pres­i­dent, Omar al-Bashir, was al­lowed to leave the coun­try” has come and gone. The North Gaut­eng High Court ruled that the or­der was bro­ken and in­ves­ti­ga­tions should be con­ducted on those who de­cided that alBashir should leave. The process will now be fol­lowed in the norms of our laws. The judg­ment has se­ri­ous im­pli­ca­tions be­cause it says the law was flouted and the court or­der dis­re­garded. How­ever, the judg­ment has its weak­nesses. Firstly, it fo­cused its ar­gu­ment legally only, although it ac­knowl­edged that the ar­rest could have caused in­sta­bil­ity and ten­sions else­where in Africa.

I fully agree with ANC secr etary-gen­eral Gwede Man­tashe’s ex­pres­sion on the court’s out­come that: “If im­ple­mented it will lead to the coup of gov­ern­ment and is not easy to im­ple­ment.” The gov­ern­ment will ap­peal to the Con­sti­tu­tional Court, as the de­ci­sion not to ar­rest al-Bashir was in the best in­ter­ests of the coun­try.

Un­for­tu­nately, the op­po­si­tion par­ties (ex­cept one) in Par­lia­ment were nar­row and fo­cused mainly on the le­gal view. They played to the gallery on is­sues of break­ing the law, un­der­min­ing the Con­sti­tu­tion and rule of law and dis­re­gard­ing the fun­da­men­tals of pol­i­tics, the com­plex­i­ties of in­ter­na­tional re­la­tions and our own na­tional in­ter­ests.

We con­tinue to re­it­er­ate the ANC po­si­tion, and our poli­cies re­main en­trenched in the ethos of hu­man rights. Na­tions tend to be blinded by their na­tional in­ter­ests at given times and usu­ally dis­re­gard mat­ters of hu­man rights. We will re­main true to our re­solve to achieve our goals of a hu­mane, just and eq­ui­table so­ci­ety, not blinded by dogma but in­formed by the con­crete and sci­en­tific ob­jec­tives on the ground.

What hap­pened in Su­dan is se­ri­ous. Al­most 300 000 peo­ple were re­port­edly killed in war crimes and more than 2 mil­lion dis­placed. We must pur­sue jus­tice in con­di­tions of peace. Those in­volved must ac­count and give an­swers for vic­tims to get restora­tive jus­tice. Those guilty of any wrong­do­ing must be brought to book, what­ever mech­a­nisms are ar­rived at.

South Africa faced sim­i­lar con­di­tions where thou­sands were killed and mas­sa­cred, while still oth­ers are miss­ing. Our hu­man rights were gravely vi­o­lated dur­ing apartheid. We know what it’s like to be a vic­tim. We chose a dif­fer­ent path – the rec­on­cil­i­a­tion, peace and build­ing of our na­tion. Per­pe­tra­tors and in­sti­ga­tors of the vi­o­la­tion of hu­man rights and apartheid to­day are liv­ing side by side with the vic­tims. It was a dif­fi­cult choice. We re­main com­mit­ted to pur­su­ing peace and jus­tice in Su­dan and else­where in Africa.

The ANC has said that the ar­rest of al-Bashir would have cre­ated a prece­dent, which had never hap­pened any­where in the world since World War 2: that of ar­rest­ing a sit­ting pres­i­dent.

In the Vi­enna Con­ven­tion agreed to in 1961, the in­stru­ment is there to as­sist world lead­ers, to en­able them to at­tend meet­ings at the United Na­tions and other fo­rums, giv­ing them im­mu­nity to travel, ar­rive, at­tend and de­part with­out any threat of ar­rest. This in­cluded even the most no­to­ri­ous dic­ta­tors. This in­ter­na­tional in­stru­ment of im­mu­nity has guar­an­teed lead­ers, who for more than 40 years since the Vi­enna Con­ven­tion, were never ar­rested by a host coun­try. South Africa was not go­ing to do it. The African Union (AU) was es­tab­lished in 1963 and al­ways en­joyed a sim­i­lar sta­tus of im­mu­nity as part of the com­mon-law prac­tice by all its mem­bers.

While recog­nis­ing the war­rant of ar­rest on al-Bashir, the South African gov­ern­ment pub­lished the Gov­ern­ment Gazette – for about 10 days – telling the public about the AU meet­ing it would be host­ing and the im­mu­nity in­vo­ca­tion on it. No ob­jec­tions were re­ceived and, as the AU chair­per­son’s of­fice in­forms and in­vites gov­ern­ment and heads of states to its own gath­er­ings – and Su­dan is a full mem­ber – we were guided by this in­stru­ment that is ac­cepted world­wide. Had South Africa in­vited al-Bashir on a state visit, the mat­ter would have been dif­fer­ent.

The ar­rest or non-ar­rest of al-Bashir must be seen not only from a le­gal view, but while look­ing at the fact that our lead­ers had to weigh all as­pects.

What guided our de­ci­sion not to ar­rest:

Ar­rest­ing al-Bashir would have jeop­ar­dised and dam­aged the African unity that is a ma­jor fo­cus of the AU. Our be­ing African and the en­tire African agenda was in ques­tion. South Africa was go­ing to be faced with hos­til­ity, po­lit­i­cal iso­la­tion and marginal­i­sa­tion of the worst kind – which was loom­ing. We saw dur­ing the so­called xeno­pho­bic at­tacks how our cit­i­zens were threat­ened and South African busi­nesses closed or threat­ened in some coun­tries. Our moral voice would have di­min­ished and lead­er­ship and guid­ance would have been com­pro­mised, if not crushed. So we chose African unity.

Ar­rest­ing al-Bashir would have neg­a­tively af­fected the coun­try’s na­tional in­ter­ests greatly. Since 1994, our trade and in­vest­ments in Africa jumped from a mere R40 bil­lion to more than R400 bil­lion. Our in­vest­ment and trade in­clude re­tail chains, fi­nan­cial ser­vices and banks, mo­bile tele­coms, prop­erty, min­ing and en­gi­neer­ing ser­vices, as well as goods in shops. The re­ac­tion from the con­ti­nent was go­ing to be dev­as­tat­ing, as some of our busi­ness oper­a­tions were go­ing to be forced to close, li­cences would have been re­voked and we would have been boy­cotted. So we chose the ad­vance­ment and pro­tec­tion of our na­tional in­ter­ests.

We have about 700 sol­diers in Su­dan as part of the AU and on mis­sions with all our equip­ment and mil­i­tary hard­ware. Most of the sol­diers are fam­ily mem­bers, fathers and moth­ers. They would have been ar­rested in Su­dan for ran­som and oth­ers prob­a­bly killed by ex­trem­ists and fun­da­men­tal­ists, fan­ning ag­gres­sion and war. The na­tion would have been in tur­moil. We avoided and averted chaos and a sub­se­quent back­lash. We chose to pro­tect the lives of our sol­diers and per­son­nel.

Ar­rest­ing al-Bashir would have dented our vi­sion of a peace­ful con­ti­nent. There­fore, peace was a fac­tor. For with peace we can de­velop our con­ti­nent to be­come a pros­per­ous one that can pur­sue jus­tice. With peace comes rec­on­cil­i­a­tion and the restora­tion of jus­tice for vic­tims. A peace­ful Su­dan will en­able us to set­tle all the dis­puted and out­stand­ing is­sues in the area.

The non-ar­rest of al-Bashir was in de­fence of our revo­lu­tion. En­e­mies of the revo­lu­tion say they were dis­ap­pointed. But our revo­lu­tion was saved and we can now walk tall and ad­vance the goals of our revo­lu­tion. We are not go­ing to ir­ra­tionally crush our rev­o­lu­tion­ary gains, in­clud­ing the de­fence of democ­racy, our Con­sti­tu­tion and our in­sti­tu­tions.

We are ask­ing gov­ern­ment to ap­peal the high court’s de­ci­sion in the Con­sti­tu­tional Court.

Gov­ern­ment must en­gage with the In­ter­na­tional Crim­i­nal Court (ICC) to raise fun­da­men­tal is­sues of the ob­ses­sion of only pros­e­cut­ing Africans, the ar­ro­gant

Omar al-Bashir

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