The al-Bashir saga: Questions about the bottom line on SA's sovereignty

By Jan Hofmeyr

One of the more revealing aspects of this week’s fracas involving Omar al-Bashir’s entry and exit from the African Union Summit in Sandton, is the deep insecurity our government has displayed in asserting its own sovereignty. Faced with a choice between adherence to our constitution, abiding to an international convention to which it is a signatory, and complying with an AU resolution on the union’s cooperation with the International Criminal Court (ICC), it simply did not have the stomach to opt for any of the above.

Instead it appears to have absconded, seemingly choosing to open the backdoor, turn a blind eye, and in the process absolve itself from accounting for any chosen course of action. In the wake of this peculiar fumbling festival, the relevant departments in the security cluster who appear to have been strong-armed into looking incompetent, will suffer further humiliation in commissions of inquiry that will pull their credibility to shreds. And if precedent is anything to go by, we can expect a few fall guys and girls, punished with plush diplomatic postings and a whole lot of collateral damage to their respective institutions. The judiciary, for its part, will try to recover from the below-the-belt body blow inflicted from what was supposed to be its ultimate guardian.

Why this abuse? Why give the benefit of the doubt to an alleged warlord and so easily sacrifice the integrity of your own institutions at the altar of expediency? And why, for goodness sake, this predisposition to look sheepish rather than resolute when it matters?

Much of this stems from our government’s reluctance to strongly position itself within the international constellation of nations. It seems to find itself caught between how it would like to be seen and how it is required to navigate a competitive global environment in which sentiment counts for little. More often than not the two are difficult to reconcile. It demands give and take, but ultimately the government’s responsibility is to protect the bottom line — the sovereignty and values of the state it represents.

Since our democratic transition the country’s political and business elites have gone out of their way to position South Africa as an international actor with moral gravitas and normative influence. It did so by emphasising the triumph of democracy over authoritarianism, and fervently punting the notions of a reconciled rainbow nation, together with the iconic figures of Nelson Mandela and Archbishop Emeritus Desmond Tutu associated with it. For the larger part of this period it has paid off. The country was drawn into influential international governance fora; its citizens elected to head some of these. It did, as some have argued, allow the country to punch above its weight in global affairs.

Of course, such branding was leveraged with equal success in realms other than politics. When the Fifa scandal broke a few weeks ago one minister after the other, as if rehearsed, swore that Madiba and not bribes, won the 2010 tournament for us. “Nobody,” proclaimed the minister for sports and recreation, “stood a chance against us”.

And for better or worse, this highly calibrated normative yardstick is the one that many South Africans continue to use when judging the foreign policy calls of their government. They demand of it to be an extension of the country’s constitutional values. As heated public debates in recent years ensued about controversial foreign policy stances by the South African government, moral reasoning with the unmistakable subtext that such conduct is inconsistent with the identity and normative character of the post-apartheid state, almost without fail, formed the core of critics’ responses.

And yet, normative consistency, unfortunately, has become a luxury in a realm as fluid, complex and unpredictable as international relations. It does not imply that we have or should have carte blanche to pursue policies that are morally incongruent with the principles and values that their citizens espouse, but it does mean that pragmatic decisions are sometimes required exactly to protect and advance those very principles in the longer term.

When your country desperately needs high growth rates to kick-start employment and push back the barriers of poverty, and you consistently keep missing these targets by some distance, are you going to jeopardise your thriving trade relationship with an undemocratic state by inviting a spiritual leader that is politically unpalatable to the said country? Personally I don’t believe that a South African visit by the Dalai Lama would have fractured our relationship with China in any meaningful way, but the startling thing is that nobody within government even attempted to follow this reasoning and tried to publicly craft a principled argument that the end (a more affluent and equitable society) should in that instance have justified the somewhat less than desirable means. Instead we witnessed an embarrassing concoction of uhming, ahing, and clumsy excuses about visas and other administrative issues. In this instance the government absconded, and also passed on the opportunity to articulate a position that says ultimately our responsibility is to protect the values of the Constitution, which includes the political and economic aspirations of citizens. It may or may not have worked, but at least it would have forwarded its argument from the moral high ground.

Which brings me back to Omar al-Bashir, the ICC, and the shenanigans of Sandton this week. It has to be said, as my colleague, Kelly-Jo Bluen, has also done elsewhere this week, that the ICC has done very little thus far to endear itself to post-conflict countries around the world and particularly so in Africa. Its conduct has been afflicted with inconsistencies, which on some occasions are difficult to interpret as anything other than hypocrisy.

But in this instance, it is beside the point. Our government is a signatory to the Rome Statute and has done so because at its inception it was the appropriate thing to do for a country that regards itself as a normative actor on the international stage. It has furthermore ratified this statute within our own law, which compels our government to act in accordance with its determinations. That it has developed reservations about its application, and that it voted in favour of the AU resolution to suspend cooperation, is neither here nor there. It has not withdrawn from the Rome Statute and hence is bound by its determinations. For this reason it would have been surprising if the North Gauteng High Court ruled in any other way than it eventually did.

Yet, having realised that it has erred in its invitation to the Sudanese president — because unlike in Sudan our government is not a law unto itself — it once again seems to have dodged the opportunity to articulate principle, without wanting to appear unprincipled. Yet this time it backfired, and a strong impression has been created that it was forced into behaving in a way that shows as much respect to the rule of law as the al-Bashir government does in its country.

South Africans will most likely be keen to support its government’s quest for a more equitable international justice architecture, but then it also needs to take its citizens into its confidence and clarify what their bottom line is. Uncomfortable pragmatism in the face of global power relations is inevitable, but it should never compromise the sovereignty of the state, which in my estimation constitutes the threshold beyond which it cannot bargain.

Had it officially withdrawn its support to the Rome Statute and motivated it decision from a principled position, our government would have had the moral high ground. It would have behaved as the trusted normative actor that it has always sought to be. Yet, in its rush to be everything to everybody, it seemingly failed to isolate its pragmatic foreign policy behaviour from what it is meant to protect, our right to conduct ourselves in the way that we democratically determine, without fear or favour, least so from the dictates of autocrats. Such means can never justify the ends.

Jan Hofmeyr heads the Policy and Analysis Unit of the Institute for Justice and Reconciliation. He is currently on sabbatical as a visiting researcher at the German Institute for Global and Area Studies in Hamburg, Germany. He writes this in his personal capacity.