Sudanese President Omar al-Bashir created a political storm in South Africa when he visited last week and the nation's leadership allowed him to leave without being arrested on international genocide warrant. But the fight over what happened is far from over.
Sudanese President Omar al-Bashir may be long gone from South Africa, but the consequences of his recent visit are snowballing.
Critics, politicians and lawyers have challenged South Africa’s leadership for its decision not to arrest the longtime leader on a genocide warrant from the International Criminal Court. South African officials have argued Bashir enjoyed diplomatic immunity as a participant in the recent African Union summit in Johannesburg.
A South African court issued an interdiction to keep Bashir from leaving until his warrant could be presented in court, but South African security officials allowed him to leave from a military base without interference.
Implications for futures
Southern Africa Litigation Center international criminal justice lawyer Angela Mudukuti says South Africa could be dealing with the fallout for some time.
“That is exactly the issue, that the man has left, but we sit with the great issue, it is that a direct court order was defied by the government. And South Africa has great respect for the separation of powers, the independence of the judiciary, and the importance of adhering to the constitution," said Mudukuti. "But we see in this case, all of those things have been disregarded, bringing South Africa’s reputation into disrepute and also leaving us with a legal conundrum: How is this possible, how has this happened, and what will be the consequences?”
Parliament gearing up for debate
The next round will likely take place in the nation’s parliament, where the powerful African National Congress and the opposition led by the Democratic Alliance, are gearing up for a debate this week.
The ANC has asked whether the nation should re-consider its membership in the International Criminal Court. And the DA has called for an investigation into whether state resources were used to help Bashir make his exit.
African National Congress spokesman Zizi Kodwa says his party agrees with the position that Bashir was a guest of the African Union, not the South African government, and therefore was safe from arrest.
He hastened to add the charges against Bashir are grave and deserve a proper legal examination. Bashir is accused of trying to exterminate non-Arab ethnic groups in Sudan’s western Darfur region. More than 200,000 people have died there since the conflict started in 2003.
But, Kodwa says, that does not mean the ICC is a fair court.
“Our view is that gradually the body has moved away from its mandate, [by] targeting African leaders, and it is unfair and we think that South Africa must re-consider its position,” said Kodwa.
Mudukuti notes it would take at least a year for South Africa to pull out of the ICC. The measure would have to follow a complicated and slow path through both houses of parliament, through public feedback, through the president, and through the United Nations.
Democratic Alliance spokesman Mabine Seabe says his party’s issue is not whether South Africa should stay in the ICC, but whether the government followed its own laws.
“We are of the view that the government aided and abetted Omar al-Bashir using state resources to escape this arrest and flee the country," he said. "While there may be shortcomings with the ICC, but at the moment, that is neither here nor there. The point is that we are signatories to the ICC, the Rome Statute, and it forms part of our own law. And we can not decry and lambaste laws after the fact, even though these are matters that we signed into law here.The law stands and the law should be upheld.”
South Africa’s parliament plans to debate the issue Tuesday.