EDITORIAL: A blatant violation of the Constitution

17 JUNE 2015, Business Day (South Africa)

WHICHEVER way you look at it, the South African government’s handling of Sudanese President Omar al-Bashir’s visit to the country was botched — unless the goal was to damage our already-dented reputation as a reliable international partner and generate a domestic constitutional crisis.

The only conceivable benefit to be gained from allowing Mr Bashir to enter SA, attend the African Union (AU) summit in Sandton and leave from Waterkloof air base unhindered despite a court order that he be detained until an application for his arrest had been heard, was the approval of other African countries. It is no secret that the International Criminal Court (ICC), which has an outstanding warrant for Mr Bashir’s war crimes, has been rejected by some African leaders because its sights have so far been so narrowly trained on the continent.

Never mind that the AU has made no serious attempt of its own to ensure proper accountability for human rights violations by the union’s member states.

That is the official explanation for the organisation’s antipathy towards the ICC, in any event. A less charitable view is that those leaders are appalled by the realisation that the impunity they have ensured they enjoy in their own countries — and, apparently, in many others on the continent — is under threat due to the ICC’s global jurisdiction. Crimes against humanity are naturally to be condemned: until the fingers are pointed at you or your peers.

Either way, SA, with 33 other African states, is a signatory to the Rome Statute, which brought the ICC into being, and if the government has a problem with the way the organisation is going about its business, the way to address this is to lobby like-minded nations and record an official objection.

And if that is not taken seriously or the perception of bias remains after the issue has been debated, then you withdraw your ratification of the accord.

Simply ignoring an international agreement that was signed voluntarily by a government controlled by the same political party that is in power today is not only infantile but reveals contempt for the rule of law. Once ratified by Parliament, international treaties such as the Rome Statute become part of South African law. Mr Bashir should have been arrested the moment he set foot on South African soil — not because the ICC said so, but because that is the government’s constitutional duty. And it should not require a court order for it to be carried out.

Or not, which makes things even worse. The sophistry of the state’s justification for not complying with either its international obligations or domestic law has been nauseating. Unfortunately, it is also disturbingly familiar, as is the suggestion that the government investigate itself to establish whether it has done any wrong. This approach has worked — so far — in President Jacob Zuma’s favour with respect to the Nkandla scandal, so why not try it again?

One good reason is that the courts will surely not allow it. The judicial arm of the state has been wary of trespassing on the turf of the executive or legislature, despite constantly being called upon to adjudicate on whether they are complying with the Constitution. With Nkandla, the legal process is yet to run its course, but in the case of Mr Bashir a court order has been blatantly ignored, and a crucial democratic principle is at stake. In a constitutional democracy the state, the officials it employs and their political masters must respect the authority of the courts or face serious consequences.

The alternative is despotic rule — rather like the regimes controlled by the African Big Men Mr Zuma seems so keen to impress.