NOTE: I wrote the first version of the article below on Sunday June 14 following the South Gauteng High Court’s interim order to the Department of Home Affairs preventing Sudanese President, Omar al-Bashir, from leaving South Africa pending consideration by the courts of an application for his arrest brought by a nongovernmental organisation. I have updated the article in view of developments since June the 14th. The thrust of the argument presented earlier remains the same though it is elaborated in some areas.
Coloniality, Cold War Politics and the agitation for the arrest of President Omar al-Bashir.
Not since the International Criminal Court issued an indictment for Sudanese President Omar al-Bashir in March 2009 has the world witnessed such intense and concentrated global media reporting and commentary on the issue as in the hours after 14h00 South African time on Sunday June 14.
This followed a South African high court judgment ordering the government to prevent President Bashir from leaving the country pending its consideration of an application for his arrest brought by a nongovernmental organisation.
As usual, the commentary has been divided between those demanding for President Bashir’s arrest and the more circumspect who call for a broader appraisal of the full range of issues that attach to the matter.
For the latter group, there are many factors that would have made the arrest of President Bashir on South African soil ill-advised and catastrophic. These include, and are not at all limited to, the following:
- We would have imperilled our bilateral relations with Sudan, and with many of her neighbours as well as the wider Muslim world;
- It is worth recalling that South Africa currently has 850 military and 42 police personnel serving under the United Nations African Union Mission in Darfur, Sudan, making their contribution towards the search for security in that country’s region. What might have befallen these gallant South Africans had we arrested President Bashir? It means considering something which regrettably does not come naturally and easily among sections of South African society, i.e. the national interest;
- We would have divided and weakened the continent and the African Union in particular. For President Bashir was in South Africa at the invitation of the AU, and arresting him would have trans-mutated our continental organisation into an instrument in the service of interests other than African, a matter most Africans would resent deeply.
- By contrast, the US government does not arrest foreign Heads of State and Government, even when it has sanctions over them, when they attend the UN General Assembly every September. It is obvious that were it to do so, the US government would weaken the UN, and undermine its privilege of hosting that organisation on American soil. A South African arrest of President Bashir would have stoked and exacerbated the precarious political situation in Sudan, which faces enormous political and social challenges. The on-going AU-led processes to resolve Sudan’s (and South Sudan’s) political challenges would be mortally damaged, deepening instability in an already volatile East African region.
The process to normalise Sudan is supposed to lead to a National Dialogue, their CODESA-type initiative, which is being designed to discuss: (a) ending the armed conflicts in the country; (b) democratising Sudan; (c) revitalising the economy; (d) the question of national identity; and, (e) Sudan’s relations with the rest of the world; and finally,
- South Africa would thus have manufactured a foreign policy crisis of unprecedented proportions with far reaching domestic and continental implications. We and the rest of the continent would have been left to pick up the pieces from the fall-out while the agitators, as often happens, moved on to yet another issue elsewhere in the world.
As Africans, we are the ones having to contend with the aftermath of NATO’s 2011 regime-change scheme in Libya. Among other consequences, the proliferation of small arms has introduced new security threats in the Maghreb and the Sahel and exacerbated old ones; the Libyan state has totally collapsed, with socio-economic consequences not only for Libyans but for other African states. Today, the graphic representation of NATO’s arrogant folly in Libya is the sight of Africans crammed on rickety boats, if they are lucky, or, worse, drowning in the Mediterranean, in vain search of a better life in a resentful Europe. Those that bequeathed us this bumper harvest of thorns appear to have been struck by muteness; without even a squeak of remorse.
The questions surrounding arresting President Bashir are thus essentially political and not legal as the advocates of ‘international’ justice have made out. Because the issues are political, the AU has, on more than one occasion, requested the UN Security Council to defer the warrant of arrest against President Bashir to enable the Union to engage with Sudan’s political players to find a lasting political solution which would necessarily have to address the issues of accountability and justice as well as the fundamental and unavoidable issue of national reconciliation. To date, the Security Council has not deigned to respond to the AU.
And so it continues to be that external factors and priorities stand in the way of the resolution of Sudan’s political challenges as they do elsewhere on the continent and beyond.
The school of thought which superordinates legal processes over all other factors, overlooks the local and global political contexts in which the law is applied. Consider the fact that the US, Russia and China are not even signatories to the Rome Statute (of the ICC.) Yet, as members of the UN Security Council, which is not representative of the vast majority of the world’s population, they have the power to refer matters to the ICC.
This is not a call for impunity: Very few on the African continent would deny the vital need for accountability and justice in the context of Sudan’s conflicts. But the insistence that all there is to the issue is ICC justice, an ICC to which Sudan is not a signatory, is a form of fundamentalism that has so far served to delay any real progress. The fallacy that the justice question is the sole issue, rather than one of many issues in need of resolution is frankly dangerous.
This fundamentalism is a failure to concede the political and complex nature of Africa’s conflicts, a refusal to recognise the many as-yet-to-be-resolved socio-historical factors that operate on the Continent, including and especially the enduring colonial social relations that continue to produce conflict in Africa. Only such a fundamentalist outlook would fail, among informed circles deliberately ignore, that the successful resolution of these conflicts is fraught with political difficulties at the local and international levels.
Against this background of complexity, the selective oversimplifications of the overzealous justice fundamentalists renders their activism suspect and might betray other underlying motives.
Consider the so-called South African miracle (for miracle there wasn’t – there was a prolonged process of struggle), which is repeatedly cited as an achievement because the victims accepted peaceful cohabitation with the captains of apartheid and their social base. As if they need the condescending counsels, the victims are regularly lectured from home and abroad, by the same people baying for President Bashir’s arrest, on the virtues not only of forgiving but forgetting their painful past altogether.
In that context, forgetting has a double meaning. It entails the expunging of experience from memory and thus serves to exorcise the guilt of the oppressor, while by the same token demanding that the victims to do nothing about righting the wrongs of the colonial and apartheid era!
Given the value attached to the South African miracle, why then is it now impermissible to allow a similar approach to serve the resolution of conflicts beyond South Africa?
The answer is hardly jaw breaking! It lies in “coloniality“, which, alas, lives happily long after decolonisation. The casual assumption holds that the views of the Sudanese and the efforts of the AU, are by definition, inferior and not worthy of consideration. In this worldview, the notion that out of Africa ideas and workable solutions could come is inconceivable. They cannot imagine that African proposals do contribute towards legal jurisprudence and knowledge and thereby advance human civilisation.
But take a few steps back into history: In a number of African countries such as Zimbabwe, Namibia and South Africa, colonial oppression was ultimately resolved at the negotiation table. Curiously, negotiated settlements are now under question for the resolution of postcolonial African conflicts.
At the same time, Europe, which, like all humanity is not immune from conflict, is permitted to chart a political path to resolving its conflicts. The latest example of this is the French, German and Russian agreement to seek and find a political solution to the conflict in Ukraine. It is neither explicitly stated nor remotely suggested that the law supersedes all other considerations.
It is to this mindset of coloniality that we must also turn to understand why it is that national and global discourse on human rights abuses focuses almost entirely on Africa.
Thus, the new priests and priestesses of international justice usurp and appropriate human rights discourse and the law to achieve subtle and often not so subtle political ends. And this June here in South Africa, their voices were at their shrillest!
Recognising this effrontery, many in the developing South are beginning to think that perhaps the only thing that changed after the major events of 1989 was the fall of the Berlin Wall. For the Wretched of the Earth, the world has become rougher in the Hobbesian sense of life being “solitary, poor, nasty, brutish and short.”