The implication of the attendance and departure of President Omar al-Bashir from the African Union Summit

Dr Pieter Mulder

If Omar al-Bashir could succeed in fleeing the country without the knowledge of the government, especially from a military key-point, it points to total incompetence. If not, it means that the government had willingly ignored a court order.

Whatever happened, these events had revealed the ANC government on the huge stage of the international community as a mere violator of human rights, as never before. Dr. Pieter Mulder’s full speech on the issue as made in Parliament yesterday follows below:

What is good leadership?

A leader has to anticipate the future and timeously take steps in the interest of his organisation to prevent embarrassment for and damage to his organisation. He should therefore timeously notice any trouble still on the other side of the hill. President Zuma and the ANC government did not do it and has caused South Africa immeasurable harm.

What are the facts? In 1998 the ANC signed, ratified and internalized by way of legislation the Rome ICC Convention and is thus bound to honour it.

The second fact: A warrant for the arrest of al-Bashir’s arrest was issued and is valid internationally, especially in SA as a signatory of the Rome Statute.

The third fact: al-Bashir arrives in SA.

Of course there are arguments that the International Criminal Court only targets Africans. The current nine conflict situations which the government is investigating are all in Africa.

Leadership means anticipating the future. If the government does not agree with the ICC, they should have withdrawn from it timeously. There is a procedure to do this.

If they did not want to do this, they should have sent a message to al-Bashir that it would be a problem and he should not come.

The government did not do one of the two.

What did they do? They relied on the immunity of all heads of state.

Who were the legal advisors who had advised the President about this issue?

Section 27 of the Rome Statute determines that one’s status as the head of state does not ensure immunity from the jurisdiction of the ICC. The South African court also determined this.

It seems to me that the ANC did not know this. Or maybe conveniently forgot about it.

On the 4th of June 2002 we debated the ratification of the Statute of Rome in this Parliament.

Adv. Johnny de Lange, on behalf of the ANC said in the debate: “Another very important principle spelled out in this legislation is that heads of state, heads of government and members of Parliament will not be able to raise the defence that they are heads of state”.

Hon. Landers said: “… for perpetrators of genocide, crimes against humanity and war crimes the world has suddenly become a small place and the number of safe havens has been drastically reduced.” So, die ANC did know it.

Now some government leaders are alleging that al-Bashir had slipped away after the court order.

So, al-Bashir slyly slipped away at night across the Limpopo River and government could not prevent this?

No, he departed from Waterkloof Air Force Base, a military key-point.

If he departs from a military key-point without the government knowing it, it is total incompetence on the side of government.

On the other hand: If they did know, it attests of a specific decision of government to disregard a court order.

Both possibilities leave SA in a dangerous constitutional position.

Forget about Fifa. The al-Bashir debacle makes Fifa look like a Sunday school picnic. No other executive act has ever exposed the ANC as a human rights violator on such a grand scale to the whole world.

The fact is that the ANC government has made a huge mistake, did not anticipate the problem, had poor legal advice and has further damaged SA’s international standing so shortly after the Fifa scandal. The price for this will make government and SA pay, for a long time to come.