SA’s interests more important
ARTICLE 66 of the Rome Statute of the International Criminal Court (ICC) enunciates the general principles of universal criminal law when it states: “Everyone shall be presumed innocent until proved guilty before the court in accordance with the applicable law. The onus is on the prosecutor to prove the guilt of the accused and in order to convict the accused, the court must be convinced of the guilt of the accused beyond reasonable doubt.”
Article 58 prescribes two methods of ensuring attendance of an accused person before the ICC, by a warrant of arrest and by a summons to appear.
Whatever Omar al-Bashir is accused of vicariously or culpably having done (300 000 deaths in 2003-2004), first, he is innocent until proved guilty in a court of law, not outside it.
He is a head of a sovereign state, which is equal in law to the revered ones in the West, even if he came about that position unconstitutionally through a coup in 1989.
Common courtesy, in the light of the face of being a head of a sovereign state and the presumption of innocence principle, dictated that the lesser route of being summoned to appear in court should have been embarked upon from the outset, rather than the drastic measure of a warrant of arrest. This was not only a sign of disrespect for a sitting African president but also calculated enthusiasm for the pursuit of African leaders in the future.
The African Union (AU) twice took a position that no sitting African head of state/government would appear before the ICC. Those in Africa and in the rest of the world should respect that.
Countries like the US, Russia, China and India have not ratified the Rome Statute and by that very fact are disqualified from pontificating about the rights and wrongs of member states of the ICC.
There are two sound reasons for the AU decisions: that of respect for the office of a head of state and that of not deflecting him/her from state matters of governance.
In fact, article 16 permits postponement of prosecution for 12-month periods through the UN Security Council, which request was defeated by votes in the case of Kenya’s President Uhuru Kenyatta in 2013. Besides article 29 states that there shall be no time limitations for the lodging of criminal charges.
So anyone can be prosecuted after his or her term(s) in office. Africa intends no impunity for leaders, but intends respect for its offices of rule and those who put them in power.
Undoubtedly the criminal allegations against al-Bashir are very serious, as is the failure of our government to execute the warrant of arrest against him. But the issue goes far beyond the narrow issue of legalism, but to the untidy, wider issue of the interests and wellbeing of South Africans.
The AU summit was exactly that, an AU and not a South African summit. The Sudanese president was here as a sovereign head representing the Sudanese on matters affecting them in the continent.
Maybe the AU should add a clause to its constitutive act expressly giving immunity from arrest/prosecution to heads of states and governments attending its summits.
The action in court was arguably right, but the timing was wrong. Besides, matters of governance fall within the purview of the state and not of NGOs.
We dare not turn South Africa against the continent after the recent xenophobic attacks and after voting for a no-fly zone in Libya during the 2011 Arab Spring in the UN Security Council against the recommendations of the AU.
The rule of law is great for legalism and democracy. But the interests of a state and the wellbeing of its people is greater.
The rule of law or democracy exist for the people and not people for the rule of law or democracy.
What is more, article 41of our constitution calls upon all spheres of government and the organs of state (the executive, legislature and judiciary) to “secure the wellbeing of the people of the republic”. Not acting against al-Bashir could correctly be conceived as securing the wellbeing of South Africans vis-a-vis the rest of the continent and extremist terror groups.