The ANC Government has landed itself in a pickle following its failure to arrest the president of the Sudan, Omar al-Bashir who was present in the country for the African Union summit, held in Cape Town early in June this year. It was obliged to do so according to the prescriptions of the International Criminal Court (ICC) to which it subscribes as well as by observing an order of its own courts according to its much vaunted constitution.  In many quarters, this is seen as a gross violation of its international obligations and its respect for the country’s courts and constitution. ANC spokespersons have argued that the arrest of Omar al-Bashir  would have had very serious political and economic implications in its quest for building the unity of all African states. Bashir is accepted as a bona fide representative of an African state in the AU and should be treated as such. Moreover, the demand for the arrest of Bashir is viewed as another case of bias by the ICC which has failed to demand the prosecution of “Western” war criminals such as George W Bush and Tony Blair for the reckless, opportunistic and ultimately devastating invasion of Iraq and war on its peoples. Not to mention the equally horrific and indefensible acts of Netanyahu and his cohorts in the blockade of Gaza.  As true as this is, there is nothing in it to excuse the action of the ANC-led government. It willingly joined the ICC and subscribed to its mandate and was therefore required to carry out its requirements. Worse still, there was absolutely no reason to flout the constitution of the country.

A simple remedy that was open to Zuma and co. was to insist to other members of the AU that it would be obliged to have Bashir arrested if he set foot on South African soil and that Sudan should instead send another suitable representative to the summit. A strong stand on this matter could hardly have jeopardised South Africa’s standing in the AU as indeed, it bears plenty of the costs of keeping the union going. It could be argued that South Africa was basing itself on principle and not opportunism but  one has reason to ask that if the South African government and other African states feel unhappy and dissatisfied with the role of the ICC, then why have they not made use of the African Court of Justice and Human Rights to bring tyrants such as Bashir to book.    Unfortunately, we have a cynical and opportunistic clause in its Protocol on the Statute of the African Court of Justice and Human Rights: “No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”  It is essentially the same logic – a selective prosecution of individuals, excluding high-flying heads of imperialist states  on the part of the ICC, and the blanket exclusion from prosecution of all heads of state in Africa. Of course, this discrimination does not apply to members of the labouring classes.

Zuma and his ANC are in a dilemma of serving two masters and many seem to believe that the easiest way out is to leave the ICC. But the damage has been done and it is not just a Zuma matter. After all, Nelson Mandela himself praised another tyrant, Mobutu Sese Seko, former president of the Democratic Republic of Congo as one of Africa’s greatest sons.