Al Bashir de­ba­cle


I GUESS our coun­try has just been scratched off as a hol­i­day des­ti­na­tion for the Su­dan leader Omar al Bashir. The In­ter­na­tional Crim­i­nal Court (ICC) based in The Hague in The Nether­lands is­sued a war­rant of ar­rest for al Bashir for al­leged war crimes dur­ing the Dar­fur con­flict.

As a mem­ber of the ICC we have a le­gal obli­ga­tion to en­force the ar­rest war­rant. The choice for Zuma was to obey the court or­der and ar­rest al Bashir or to ig­nore the court or­der and al­low him to leave. If he obeyed the or­der he would have acted legally and would have averted a con­sti­tu­tional cri­sis, show­ing that no one is above the law.

How­ever, if he chose the lat­ter op­tion and al­lowed al Bashir safe pas­sage back to Su­dan he would pre­cip­i­tate a con­sti­tu­tional cri­sis and pos­si­bly be in con­tempt of court. I have come to be­lieve that this mat­ter is not just a con­sti­tu­tional or po­lit­i­cal/diplo­matic mat­ter – it is more com­plex than that. While it is im­por­tant to obey court or­ders and the con­sti­tu­tion there are some sit­u­a­tions which are not so black and white. Courts in­ter­pret the laws as they are writ­ten and ap­ply them to sce­nar­ios pre­sented to them – it is there­fore in black and white and no other con­sid­er­a­tions come into it. That is why they are judges and not politi­cians.

Politi­cians must act within the laws and the con­sti­tu­tion but they have other geo-po­lit­i­cal con­sid­er­a­tions of which they must be mind­ful. To ar­rest al Bashir while at­tend­ing an AU sum­mit was never go­ing to hap­pen, no mat­ter what. The diplo­matic price to pay was way too high for Zuma.

He would have lost what­ever cred­i­bil­ity he had on the African con­ti­nent. So he was left with no other op­tion, re­ally. Could the sit­u­a­tion have been bet­ter han­dled by the state? Was it nec­es­sary to stall and mis­lead the courts on Mon­day while know­ing full well that Al Bashir had gone?

I be­lieve it could have been han­dled bet­ter. The gov­ern­ment should have taken the route Bri­tain has taken in the case of Is­raeli Min­is­ter Tzipi Livni who is sched­uled to visit there. Livni is given spe­cial “mis­sion sta­tus” in­su­lat­ing him from pos­si­ble ar­rest for the du­ra­tion of her visit. Could the Zuma ad­min­is­tra­tion have done the same and avoided all the fuss?

It seems to be a bet­ter op­tion than the smoke and mir­rors we saw this past week. The brazen man­ner in which the state acted, re­veals - pos­si­bly - their at­ti­tude to­wards the ju­di­ciary and the con­sti­tu­tion. Who is to say they will not sim­ply dis­obey a rul­ing they do not like in the fu­ture? What then?

I be­lieve in the sep­a­ra­tion of pow­ers be­tween the three arms of state. The ex­ec­u­tive could and should have avoided this by look­ing for a le­gal route to safe­guard al Bashir. What they did made them look like cowboys. While they are at it, a new le­gal ad­viser would not hurt ei­ther.

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