On obtaining power in 1994, there was a wide-spread expectation that South Africa’s foreign policy would confound the trend of realpolitik and support the underdog and oppressed wherever this situation was manifest in the world. Today African Solidarity triumphs over such high-minded ideals. The Omar al-Bashir incident is but the latest example of this trend where the Dalai Lama is banished but a tyrant like al-Bashir is lauded. How far has South Africa fallen from its ideals and sullied its image?

 The democratic South Africa was conceived in a wave of optimism that finally there would be a nation which would buck the international trend and base its international relations on a firm foundation of human rights.

Main picture: Omar al-Bashir attending the AU Summit in Sandton

Reality soon put paid to those visions of perfection. We would not be the paragons of virtue that the world was desperately seeking. The first to crumble was the fact that South Africa would champion African issues in particular and black rights in general. That aligned it firmly in cahoots with a pantheon of African dictators, kleptomaniacs and murderers. In fact most African leaders had obtained power either through the barrel of a gun or when they obtained it via the ballot box, it was of the stuffed variety either literally stuffed as in Zimbabwe’s case or via shenanigans or corrupt procedures in other cases.

It was Chief Justice Dunstan Mlambo who issued the court order preventing al-Bashir from leaving South Africa

To make matters worse, the ANC felt duty bound to repay the debt of gratitude to its long serving sponsors such as the paragons of human rights and democracy such as Cuba, Russia, North Korea and China. None represented the quintessential beau ideal. Having chosen them as it sponsors it was payback time. Through the intercession of a fulsome dose of reality, the ANC turned westward but an underlying yearning for a friendship with past allies has remained a constant reminder albeit well diluted with reality.

Being an inhabitant of a rough and tumble neighbourhood like Africa with no good guys to assist one in the inevitable encounter with the neighbourhood bully, South Africa threw in the towel and joined the disreputable gang called the OAU. Its pledge of fealty invoked in the form of African Solidarity. With pretensions of becoming the leader of the pack, it soon realised that street credibility was not awarded based upon economic muscle but rather by adopting the norms and standards of the gang.

Waterkloof Airforce Base: the exit point for al-Bashir

Foremost amongst those was to accuse the West of various nefarious crimes, conspiracies and egregious human rights abuses during their tenure as lord and master. The blame for the fact that 50 years of independence has not seem a measureable improvement in their populace’s living standards except huge bank balances of their rulers was deflected onto the West. The fact that both Germany and Japan which were comprehensively flattened during WW2, recovered within less than a generation to become world powers in their own right was largely ignored as Africa’s begging bowls were passed around the pulpits of the nations.

In keeping with its first blush of human rights credentials, South Africa became a signatory to the Rome Statute under whose aegis the ICC was established. Notable exceptions as signatories were the USA, China and Russia. In terms of this treaty, a court would be established to handle international human rights abuses. According to human rights advocates, this would become the forerunner of the world wide enforcement of human rights internationally.

Darfur

What those advocates failed to appreciate is that without a supranational body with enforceable powers, such a court would become a toothless tiger. Its growls might sound terrifying but its remit would be limited and circumscribed.

Even South Africa has now exposed its impotence and, more alarmingly, the vulnerability of the South African courts to being bypassed by the supposed upholder of the constitution, the government.

Genocide in the Darfur

Even more worrisome, is the reaction of two senior government officials, the ANC Secretary General, Gwede Mantashe and Minister of Higher Education, Blade Nzamandi. Both allude to the fact that there is a conspiracy in the legal system within the Western Cape and the North Gauteng courts to undermine the government of South Africa. Many not aware of how the judicial system operates would easily be entrapped within this facile comment. As the Courts operate within certain geographically jurisdictions and the legislative jurisdictions being bifurcated arising from a political accord on the establishment of the Union of South African in 1910, the seat of government is Pretoria – now called Tshwane – and the Parliament which sits in Cape Town.

The accusation against the judicial system as an implied third force within South Africa which has exceeded its legal remit is both unfounded and dangerous in the extreme.

Like in the case of many other disputes, the race card was played. As an aside during the same period, the coach of the National Soccer team, “Shakes” Mashabe also used the Race Card when commenting why Bafana drew against three minnows in the African championship!

The argument that other more deserving criminals, such as George Bush and Tony Blair for their involvement in the invasion of Iraq, should be indicted was bandied about by the ANC. If such favouritism shown to white leaders is true, why has not South Africa raised it at the UN?

Moreover if South Africa is aggrieved at the “targeting” of black leaders, why has South Africa not withdrawn from the ICC previously?

What is lost in all these arguments, is the fact that Omar al-Bashir is incontestably a murderer for his role of the genocidal campaign in the Darfur against the non-Arabic Darfurians.

Even more unsettling was the impression that the SA Government was in reactive mode as if they had not anticipated the furore that would arise when al-Bashir stepped off the plane in South African.

Where is the nexus of all these comments and events? They can all be laid at the doorstep of the President, Jacob Zuma. Robert Mugabe embarrassed the host President by revealing his illegal assurance that al-Bashir would not be subject to arrest whilst in South Africa. This statement attests to the fact that Zuma is implicated in the “escape” of al-Bashir.

As the Judge President of the Gauteng Division of the High Court of South Africa, Dunstan Mlambo has laid bare his belief that the decline in the rule of law occurs one brick at a time.

The government has in effect thrown down the gauntlet by announcing that it was a joint decision of the executive to let al-Bashir bypass the court ruling. That implies that if action needs to be taken, it will have to be taken against all senior government ministers.

It is my belief that unless action is taken against some senior official, this action will represent the swansong or denouement of the rule of the law in South Africa.