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Al-Bashir, SALC and Jonathan Moyo: When attack is the only defence

Daily Maverick
25 June 2015

The Southern African Litigation Centre, another of those do-good civil society initiatives attempting to keep the government from using the Constitution as a long-drop, has come in for all sorts of opprobrium because they’re a US State Department-funded, George Soros-minted outfit allegedly hell-bent on regime change in southern Africa. Does the SALC’s going after the government on the Omar al-Bashir affair mean we’re about to fly the Stars and Stripes from the Union Buildings? RICHARD POPLAK reports from the fringes of regime change.

Important question: was the SALC’s website absent from the net on Wednesday morning because it was breached by attack-dog hackers?

Or was it deliberately pulled from the net because the bloody agents were hiding something from South Africans who were just trying to get at the truth?

There are, I should warn you, no in-between positions—just as there are no moderate stands to be taken on anything in South Africa any longer. The SALC, you see, has become an emblem of the vitriol dumped on internationally funded civil society institutions involved in high-profile African foreign policy contretemps. More specifically, ever since the SALC challenged the government over its obligation to arrest Sudanese President Omar al-Bashir, and facilitate his handover to the International Criminal Court—largely based on the fact that South Africa has signed and ratified the Rome Statute, and was therefore deputised as a Global Policeman for Good—the ANC’s defenders (and many others besides) have wondered whose interests the NGO represents.

Perhaps you’re a bit lost? Allow me to offer a quick précis. Last week, South Africa hosted an African Union summit. Lots of nasty men received invitations, and among them was President al-Bashir, a head of state who has earned from the ICC an impeccable triumvirate—crimes against humanity, war crimes, and committing genocide. Those are some serious bone fides, and they’ve made it difficult for Bashir to conduct state business abroad, unless “abroad” happens to be one of Vladimir Putin’s dachas.

Is Omar al-Bashir the biggest piece of shit on the planet? That’s a tough question, especially considering Dick Cheney’s continued string of good health and Fox News appearances. Nonetheless, a signed statute is a signed statute, the law is the law, and under any interpretation of South Africa’s legal code, Bashir was to be arrested the moment he entered the country in order to eat shrimp cocktails at a frigid conference centre in the company of his fellow philosopher kings.

Miraculously, the South African government—or, rather, the government departments implicated in vetting international matters of criminal justice (DIRCO, Home Affairs, the National Prosecuting Authority, etc.)—had considered none of this prior to the AU summit’s kick-off. Or, rather, they’d considered against consideration. So, last Saturday, the face gracing The Hague’s biggest, glossiest wanted poster touched down in Waterkloof military base, and breezed into South Africa as a VVVIP.

As befits a civil society institution mandated to chase down matters of international law, the SALC sprung into action.

According to Caroline James, a Freedom of Expression lawyer at the SALC with whom I spoke, “On Saturday night, when we realised that President Bashir had arrived in South Africa and had not been arrested, we filed an application with the north Gauteng High Court to compel South African authorities to arrest and detain him pending transfer to the ICC.”

How did that work out?

You likely know the story: the SALC argued that Bashir should be watching Al Jazeera on a 3-D flat screen in a Hague cell, while state advocates bleated for postponements. In the end, although the judge(s) had issued multiple orders for President Bashir to stay in the country, he nonetheless bolted on Monday morning. This meant that the South African government had breached a court order, and was now likely subject to a big legal smack.

Anyway, that’s neither here nor there, certainly not as far as the SALC’s detractors are concerned. Who asked a non-elected “civil society” body to file these motions? Why did they want to embarrass both Bashir and the South African government (AKA the ANC, AKA Jacob Zuma)? And to whom do they answer?

The last conundrum is the easiest to solve, insofar as the SALC takes marching orders from its funders. (Caroline James insists that they’re not, but that’s a he said/she said argument for another time). Twitter was ablaze Wednesday morning with the fearless “discovery” of the SALC’s funders list, which was heretofore ingeniously posted where no one would look for it—on the NGO’s website! (Which was, as I mentioned, mysteriously non-functional on Wednesday). They are, in what appears to be alphabetical order:


Ford Foundation

Freedom House

Indigo Trust

Open Society Foundation

Open Society Initiative for Southern Africa

Open Society Justice Initiative

Trust Africa

United Nations Democracy Fund

United States Department of State

Given the rest of list, who in the Lord’s Name could Anonymous be? Taylor Swift? Kermit the Frog? SEAL Team Six?

Regardless, the list, which has never been a secret, has left the SALC open to serious criticism. One of the SALC’s biggest detractors of late has been Zanu-PF stalwart Professor Jonathan Moyo. Zimbabwe’s opposition used to refer to Prof Moyo as “Zimbabwe’s Goebbels”, but that’s a bit unkind. He’s currently Zim’s Secretary for Science and Technology (which means he’s on Twitter. A lot), and the Minister of Information, a portfolio with which he is intimately familiar. I tried to get in touch with the minister by text and phone, but no dice. Nevertheless, he has been making his position on the SALC very clear. To wit: “Litigation is by definition confrontational. SALC’s foreign funded confrontation of the state in SADC through litigation is subversive! “ Or, if you prefer: “Unlike SA court order on Bashir, in the US no court would interfere if US govt invoked national security to grant a foreign leader immunity!” Or maybe: “Zim gets independent 1980. SA gets its democracy 1994. SALC is founded by George Soros in 2005 to challenge both!”

But why should Moyo give care about a South African constitutional bun fight? Why not settle back and watch the ANC slam itself into walls—something Zanu members consider an established genre of comedy? Surely this was well out of Moyo’s purview as Zimbabwe’s Minister of Bullshit? I asked Caroline James why she thought the prof was so indignant. She listed some cases the SALC had backed in Zimbabwe, mostly through other legal entities, until we got to the nub:

“The only Zimbabwean relevant case,” James said, “was under the same ICC act in South Africa, when we claimed that our government had the obligation to investigate claims of torture in Zimbabwe, and the court found that there was an obligation to do so.”

Indeed, they did. On October 30, 2014, a high court judge ruled on the so-called “Zimbabwe Torture Docket Case,” and found in the SALC and the Zimbabwe Exile Forum’s favour. The judgment affirmed that, “the South African Police Service has a duty to investigate crimes against humanity committed outside of South Africa, subject to certain restrictions.” To say that this pissed off ZANU brass would be something of an understatement. Liberals were, however, cheered. A former clerk of the Chief Justice of South Africa, Brad Cibane, wrote a typically ecstatic exegesis for the Harvard law blog The Law Thinker, entitled, “South Africa is the New United Nations: A landmark ruling says South African police must investigate torture, wherever it occurs!”

Those were the days.

Now, the South African government is threatening to ditch the Rome Statute. Omar al-Bashir, the leader of what South Sudan liberation hero John Garang termed a “monolithic Arabic Islamic State”, and a man who has slain black Africans on an industrial scale, has resulted in the further fraying of this country’s constitutional system. This is the definition of lunacy: a civil society institute, financially backed by the State Department of a country that doesn’t submit to the ICC and hasn’t signed the Rome Statute, is fighting the South African government’s protection of a mass-murdering sleazebag who was allowed to waltz into this country in contravention of its laws. I warn you, the world is about to run out of chutzpah.

On the one hand, a loosely coordinated smear campaign that hopes to tarnish the SALC; on the other, a civil society institute that has a very difficult time convincing South Africans that its backers don’t set its mandate, and that it’s mandate isn’t sinister in its intentions.

“It’s important to note that the ICC programme is only one programme that we work on,” Caroline James reminded me, by way of bringing the argument down to Earth. “HIV rights, sexual reproduction rights, female inheritance rights, freedom of expression work—all of that is very different from international criminal justice. The response we’ve gotten to the Bashir case is certainly far more aggressive then we’ve had in the past.”

Well, of course it would be. This is serious business. In what seems in retrospect like stream of consciousness foreign policy formulation, the ANC government has bungled itself into anotherlegal mess, and must now rely on smear campaigns to extricate itself from the court of public opinion. And when I mentioned to Caroline James that this is now the court before which the SALC will be forced to defend itself, and that it is a far harsher court than the constitutional variety, she noted, “Yes, it does seem like this is part of a broader attempt at delegitimising civil society institutions.”

Let’s hope old Anonymous has lots and lots of spare loot. The SALC will need it. And so, it seems, will the rest of us. DM

Photo: A photo provided by the South African Government Information Service shows South Africa’s President Jacob Zuma (L) speaking to Sudanese President Omar al-Bashir (R) attending a session of the 24th African Union Summit of the NEPAD Heads of State/Government Orientation Committee (HSGOC) at the African Union Headquaters in Addis Ababa, Ethiopia, on 29 January 2011. EPA/Ntswe Mokoena

NGOs/Spies/Agendas: When attack is the only defense

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