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.