We signed both the Rome Statute and the African Union protocol that sitting heads of state would not be prosecuted – surely a policy contradiction.
The rule of law means that nobody, not even a top office bearer of the state, is immune from prosecution if they break the law. It is a principle of legal equality that is essential to the functioning of a modern state committed to upholding human rights across the board; it provides the equality South Africa desired after centuries of legal discrimination and the uneven application of the law.
It is also a principle without which a constitutional democracy is meaningless – the Constitution is the highest law in the land and the rest of the law cascades down from that pinnacle to every citizen in the country.
It is vital that the executive arm of state be held accountable to the law, especially in areas where executive power can act without the participation of the representatives of the people who sit in Parliament. Holding the executive to account is essential in a democracy, otherwise we become a dictatorship in which the only law is the whim of the ruler.
There are various current examples of South Africa’s political leadership flouting the law and, thereby, mocking the rule of law. Nkandla is the most visible internal case. This past week we had a case in which the executive flouted both international and South African law.
Sudanese President Omar al-Bashir, who has been charged with war crimes by the International Criminal Court (ICC), attended the African Union heads of state meeting in Johannesburg – and found that a legal rights nongovernmental organisation had approached the high court to have him arrested here, South Africa being a signatory of the Rome Statute, the Act that set up the ICC.
The court decided that al-Bashir should stay in South Africa until a determination could be made on his arrest, but the South African state flouted that judgment, allowing – or even assisting – al-Bashir to skip the country a day later.
The Rome Statute is not just international law, either: Parliament made it South African law.
Despite this, the government not only disregarded its obligations under the law, it also tried to weasel its way out of compliance by means of ludicrous deceptions and blatant fabrications. In arguments about an interim order to prevent al-Bashir leaving, counsel for the state told the court the state simply could not monitor all points of exit from South Africa – as if to say it couldn’t possibly prevent al-Bashir leaving, even if it wasn’t in a plane flying out of a military base.
But this was to avoid the real issue at hand: that is, detecting al-Bashir’s intention to depart. This should have been easy for state security, given that al-Bashir has a private plane, moves only with a full security escort, and has made similar quick departures from other countries where he might have faced arrest. It became widely known that al-Bashir’s plane was flying from Johannesburg’s OR Tambo airport to Waterkloof Air Force Base, in what could only be preparation for departure. The relevant officers of the state, however, remained stubbornly ignorant of any such move or such intention.
The state’s deceit was laughably transparent. But it was apparently considered a better strategy than the bald truth: we had no intention to arrest al-Bashir, and both the domestic and international courts could go hang.
There are unmistakable similarities with the way the state has handled the Nkandla scandal.
The notable difference was that, on Nkandla, the government – and specifically the minister of police and his “report” on why various costly features of the president’s private residence were security related and thus free for the president – was taking only the South African public for fools. When it came to the al-Bashir matter, South Africa tried to hoodwink the rest of the world as well, thereby further eroding any moral authority the country and its government may have left.
We are committed to human rights and thus to ending impunity for atrocities such as those laid at the door of Bashir, who came to power in a coup, and his government in Khartoum. We signed the Rome Statute and celebrated that fact, proudly boasting at the United Nations of our commitment to the ICC and “the fight against impunity”. We enthusiastically indigenised the Rome Statute, making it a part of South African law.
But we also signed an African Union protocol to the effect that sitting heads of state would not be prosecuted – surely a policy contradiction that should have flashed a red light for someone in the corridors of power. The South African state, as it proved, was not able to think through the implication of this conflict of interest or predict the foreseeable debacle that would arise. So it went to court, dissembled and pussyfooted, then – in contempt of court – helped al-Bashir to escape.
South Africa was dishonest, a quality we increasingly see in our leaders, both political and corporate. It reneged on its commitment to human rights.
The AU came out looking much like its predecessor, the Organisation of African Unity, which was famously denounced as a dictators’ club – an image Thabo Mbeki and other African heads of state worked very hard to live down as they traversed the world building support for the AU.
Today, that work is being undone, as is the work to make South Africa’s leaders obey the laws they themselves have endorsed.