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By Angela Mudukuti

SA should not be treated as a safe haven for criminals, writes Angela Mudukuti.

Former President Nelson Mandela’s oration that “South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations” couldn’t be further from the reality we see today after the safe and chaperoned departure of President Omar al-Bashir.

He is safely back in Khartoum and the South African government has brought the nation’s reputation into disrepute. Raising questions of rule of law, disregard for the constitution and lack of concern for victims of grave human rights violations – the world is wondering how South Africa failed to arrest him.

It all began last Saturday (June 13) when the Southern Africa Litigation Centre (SALC) filed an urgent court application urging the government to arrest Bashir who had arrived in South Africa to attend the 25th annual AU summit.

Though it was common knowledge he was invited, the fact that he actually decided to come was initially a big surprise. However, as the saga unfolded, reports indicated that the government had apparently assured Bashir he would not be arrested, hence his foolhardy temerity to venture into South Africa.

Bashir has been indicted by the International Criminal Court (ICC) on seven counts of crimes against humanity and war crimes, and three counts of genocide. His alleged crimes stem from the brutal suppression of an insurgency mounted by rebel groups in Darfur in 2003.

The rebel groups, including the Justice and Equality Movement (JEM) and the Sudan Liberation Movement (SLM), felt marginalised and discriminated against by President Bashir’s government. The conflict rages on today with UN figures indicating that roughly 300 000 people have died and 2.5 million displaced.

These crimes continue to be perpetrated with impunity. Bashir is not the only one who has been indicted by the Hague-based court, as leaders of rebel groups and other government officials have also been named by the ICC.

Enter SALC and its robust pursuit for accountability. Approaching the court on a long weekend, armed with compelling jurisprudence and with the law on its side.

As an organisation committed to the rule of law and to ensuring South Africa abides by its international and domestic law obligations, SALC sought to compel the relevant authorities to arrest Bashir the moment he alighted from his plane.

SALC relied on domestic law and international jurisprudence that removes diplomatic immunity in favour of accountability for crimes that shock the conscience of humanity.

The matter commenced in the standard fashion with just one judge, but due to the importance of the case a bench of three judges was convened. The first hearing was on Sunday, June 14. To no one’s surprise, the State began by requesting postponements. The court agreed, noting that the risk of flight due to pending applications was great.

SALC asked the court to make an order preventing Bashir from leaving the country. The court obliged, indicating that the State respondents must inform all ports of entry and exit that Bashir should not be allowed to leave the country.

At this point, the State had indicated that to the best of its knowledge Bashir was still in the country (and) ports of entry and exit, including the Waterkloof Air Force base, were aware of the order.

After a brief adjournment, the court ordered that Bashir was to be arrested immediately. It was only at this point that the State informed the court that they “believed” Bashir had already left.

By allowing his departure, the South African government has not only failed to uphold the rule of law but it has failed the victims of egregious crimes in Darfur. South Africa has a duty and as a member of the community of nations and in defending human rights, to make sure suspects like Bashir have their day in court.

The next burning question is: How could this situation have played out differently? There were three golden opportunities to act in accordance with the law.

First, the authorities could have followed in the footsteps of the former president of Malawi, Joyce Banda, who in 2012 refused to host the summit if Bashir remained on the guest list. This resulted in the summit being moved to Ethiopia.

Second, South Africa could have behaved as it did at the 2009 inauguration of President Jacob Zuma. Bashir was invited to attend but the then-Director-General of the Department of International Relations and Cooperation, Ayanda Ntsaluba, made it clear that should he travel to South Africa he would be arrested. President Bashir was a no-show.

The third and most important opportunity came when Bashir landed in South Africa – he should have been arrested and subsequently transferred to the ICC. The South African government failed at all of these important junctures.

To make the situation even worse, the government put the proverbial nail in the coffin by directly defying a court order and allowing him to escape. South Africa’s international reputation has taken a significant blow with its legitimacy and credibility in question.

On a more positive note, the independence, impartiality and courage of our judiciary is remarkable.

Needless to say, Bashir will not be coming back to South Africa any time soon and this is also a positive development. South Africa should not be treated as a safe haven for criminals and it would serve the government well to remember this..

*Mudukuti is the International Criminal Justice Lawyer at the Southern Africa Litigation Centre.

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