For forty eight hours, Sudanese President Omar el- Bashir made news headlines, effectively giving global headlines the AU summit in Sandton, SA. The only envy perhaps came from Angelina Jolie and Muhamud Buhari.
The South African Litigation Center filed a suit at SA high court seeking his arrest and extradition to the ICC for, among others, genocide crimes. The ICC, as well as international rights groups like Amnesty International added their voice in calling on SA to abide by its international legal obligations and have him arrested. The High court issued an interim order, June 14, barring Bashir from leaving the country until the case is disposed off in the next 24 hours. The incident weaved South Africa, the AU, and the International Criminal Court (ICC) in a legal, political and diplomatic nightmare, with far reaching political and economic complications for the African continent in the recent past. President Jacob Zuma (and SA) was in a dilemma- faced between adhering to his obligation as an AU member state to support its fellow member state Sudan; or its role as a state party to the ICC with a duty to arrest and hand over Bashir. No doubt, Zuma had his most busy night june 13.
I won’t delve into the underhand methods and persuasions from the Arab world and global power brokers here. That is for another day. But before the hearing could take place (on whether Bashir should be arrested and sent to the ICC, he left SA via Waterkloof military air base- the same base familiar to those in the know of Gupto case in 2013. Unaware that Bashir had left, the High court proceeded with the case, and dismissed the government’s lawyer’s argument that it can give immunity to African leaders to prevent them from being prosecuted on international warrants while attending summits in SA. The court ruled that Bashir should be arrested and sent to the ICC. Immediately, the government lawyer expressed doubts about Bashir’s whereabouts, and later confirmed to the court that Bashir had left SA, despite Waterkloof airbase being informed of the court order barring him from leaving. Officially, SA gov’t denied knowledge of how and when Bashir left but any level headed person understands that the SA executive was in the know and decided to save Bashir from the impending arrest. Bashir is now in Sudan.
But is it the end of the story? No.
It is not the end of the story because Bashir basically fled SA. He did not return home. His visit was catastrophic in a way. Had the visit ended without any incident, this would give a leeway to other African states, like Malawi which refused, to host him. Thus, his movements are going to be more limited, contrary to how free he would move had the SA summit ended on a good note. Remember, SA is the most powerful ICC member to host Bashir since his indictment.
Secondly, it is wrong to assume that Bashir’s exit is an indictment to ICC’s effectiveness and relevance. A SA high court has ruled that he should be arrested and sent to the ICC. The SA government, also, realized that it can not do as it wishes with Bashir, and had to use a military airbase to evade arrest. If this doesn’t manifest ICC’s relevance? then what does? After this incident, who expects Bashir to return to SA? or any other ICC signatory for that matter?
Thirdly, despite Bashir’s fleeing, power brokers in Africa, like Tanzania, remain committed to supporting the ICC. Well, I am not a strong fan of the ICC. I have my reservations about its selective prosecution. But those who think Bashir’s fleeing weakens the ICC are flatly wrong.
Most importantly; the idea that the AU can be transformed into an immunity club is dead. Murderous presidents, whether indicted like Omar el- Bashir or to be indicted like Paul Kagame, now know that they will no longer hide behind presidential immunity or AU norms and decisions to evade justice. Remember, Bashir had feared to attend events in SA on two occasions because of the arrest warrants. He decided to do so this time assured that AU would stick to its agreement on non cooperation with the ICC on matters involving sitting heads of states. SA’s independent judiciary has ruled to the contrary. The club has a reason to go back to the drawing board but as for now, Bashir can take a glass of wine and toast to his escape.