Why Lindiwe Zulu's sarcastic hubris is wrong, wrong, wrong

25 June 2015 - 14:46 By RAY HARTLEY
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Lindiwe Zulu. File photo.
Lindiwe Zulu. File photo.
Image: Linda Mthombeni

It was left to the unlikely figure of the  small business development minister, Lindiwe Zulu, to explain to parliament why the executive had broken its own laws by allowing Sudan's Omar Al-Bashir to escape a judicial order that he be prevented from exiting the country and another that he be arrested.

It was a speech dripping with sarcasm, condescension, hubris and sulky aggression as one might expect from a small business minister suddenly, blissfully, freed from the conservative ideological straight-jacket of  business-speak.

Zulu's argument was essentially that justice took second place to politics, best encapsulated by this sentence: "Africa’s newest state‚ the Republic of South Sudan‚ would not be in existence today had the parties placed the issue of justice above all others”

She qualified this with: “This does not mean that there is no role for justice for victims of conflicts. It means that recognising the complexities inherent in conflict resolution‚ it is best to address the question of justice in the context of a political settlement.”

Justice should be placed in context, subordinated to politics and therefore, politicians - those who wield power.

The main thrust of her argument was that "Africa" – presumed to be a homogeneous entity which wholeheartedly agreed with her - required a special political nous, a special dispensation, a special understanding, one to which only she and others who attended late-night AU committees were privy. Commentary by others was ill-informed and, worse, empty parroting of what western powers thought.

“It should therefore be noted that‚ our efforts for the renewal of the continent will remain void if the fundamentals elements which include peace and stability are not realised. Peace and stability is therefore an important ingredient for development,” she said.

When the speaker called time on her, she shouted out one final sentence to the effect that there was no way that South Africa would allow the prosecution of a sitting head of state. Very telling, that.

Zulu's 'politics before justice' construction was built on what has come to be consensus since Al-Bashir made his escape from Waterkloof Air Force base, his passport stamped by Home Affairs and his shoes polished by state security.

The consensus repeated by everyone from the ANC's Gwede Mantashe to the EFF's Floyd Shivambu, is that the International Criminal Court has an anti-African bias, that it is tool of western powers to undermine  'the weak' - to borrow Mantashe's phrase.

Is this true? Is the ICC really an instrument of western domination? Look a little closer and you will see a very different picture.

The ICC was established in the late 1990s as a direct successor to two International Criminal Tribunals which investigated abuses in Yugoslavia and Rwanda. The alleged genocidal killer Radovan Karadzic has been tried under this system as were génocidaires who fomented mass killing in Rwanda.

Rather than do things piecemeal, 123 countries signed up for a permanent court, the ICC.

The largest bloc of countries consists of 34 African states, followed by 27 Latin American and Caribbean States. There are 19 from the Asia-Pacific region and 18 from eastern Europe. A further 25 come from western Europe and elsewhere. There can be no question that the member states are overwhelmingly from the developing world.

Which is why the president of the bureau of the assembly of states is Sidiki Kaba, the justice minister of Senegal. And why the ICC's secretariat is headed up by Renan Villacis of Ecuador.

Unlike Zulu, Kaba has spent his life placing justice ahead of politics. From 1987 to 1995, he was vice-president of the National Organisation of Defence of Human Rights in Senegal, becoming its leader until 2001. He founded the Inter-African Union of Human Rights based in Ouagadougou, Burkina-Faso.

Kaba also founded the African Center for the Prevention of Conflicts and the African Center for the study of human rights and democracy.

The bureau of member states consists of Chile, Colombia, Costa Rica, Czech Republic, Germany, Ghana, Hungary, Japan, Netherlands, Nigeria, Republic of Korea, Romania, Samoa, Slovenia, South Africa, Sweden, Uganda and the United Kingdom. You read it right, South Africa sits on this body, which directs the ICC's day-to-day decision making. If there is a western conspiracy afoot, the United Kingdom, Japan and Germany must be very persuasive, because they are wholly outnumbered by the developing world. Ghana, Nigeria, Uganda and South Africa with a little help from South America could surely see them off?

In the event that the western agenda somehow got past Kaba and this body, it would have to win the support of the ICC's chief prosecutor. That would be Fatou Bensouda, who was elected by the Assembly of States in 2012. She comes from Gambia and has served on the ICC prosecution staff since 2004. She is the person who would be standing across the courtroom from Al-Bashir, enumerating his crimes.

Where did Bensouda get her law degree? In some fortress of western influence where she learned the ways of imperialism? Not quite. She is a graduate of Nigeria's University of IFE. Al-Bashir's lawyers would have their work cut out for them because Bensouda cut her teeth at the International Criminal Tribunal for Rwanda where she was legal advisor, trial attorney and, eventually, head of the legal advisory unit. She has spent over a decade putting the likes of Al-Bashir behind bars.

It should not be surprising that Africa dominates the ICC. Its member states are dominant, it dominates the bureaucracy and, for now, it dominates the case load.

The view that "Africa" would somehow be offended if South Africa arrested Al-Bashir is simply wrong. Yes, the old Africa of dictators, of presidents who rule by genocide, of military despots would be offended. But the new Africa, which seeks human rights, justice and freedom from the likes of Al-Bashir would celebrate. It is this new Africa which has reported case after case for prosecution before the court. And it is this emerging new Africa which is sorely disappointed by the collapse of South Africa’s human rights culture.

The ICC's current case load is Africa-focused, but it will not always be so. It is investigating crimes in Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea, Nigeria, and, according to the Economist newspaper, it is investigating British troops in Iraq.

It’s all tiresomely simple, really. Lindiwe Zulu's bluster conceals an awful truth: The South African government would like to take its place among Africa's old despots and not among its new democrats. After all, she serves a head of state who does not wish to be prosecuted.

This article first appeared on Rand Daily Mail

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