An astonishing thing happened yesterday in the South Gauteng (Johannesburg) High Court as I am sure most would know about. A High Court order was snubbed by the government and a wanted man escaped. In law this is as big as the Titanic sinking and the end of the road. It is unheard of and used to be unthinkable that a court order can be treated witch such contempt. It is a watershed moment in South African legal history.
What happened, as background, is that the President of Sudan arrived in South Africa for an Africa Union conference where Angelina Jolie also sprouted a few words no one cares about. He is wanted for war crimes by the International Criminal Court based in Den Haag, The Netherlands and they issued an arrest warrant to that effect. Whether he is guilty or not is beside the point. His guilt or innocence is for a court to decide. South Africa is bound by the Rome Treaty which clearly places a duty on the country to arrest him if he should come here. This is not new in law but established legal principles and as logical as it can be. Even a child can get this and do.
Yet, he arrived and was met at the airport by South African officials. This makes his visit entirely legal and takes away all claims that they did not know or could not have known. No President just arrives, such visits are arranged months before for security reasons and because they are generally busy people (doing what I would not know). Hence the government knew he was here and when a human rights organisation obtained a court order to keep him here pending the court deciding on a South African arrest warrant, he got onto his jet and fled the country without anyone trying to stop him. So he escaped as predicted by myself. This is astonishing to say the least and what is more is the reaction I noted from across the world.
I noted two arguments why the fellow should not have been arrested. One in Nigeria or let us say Africa proper believes the UN and America (they see this as one entity) should keep away from Africa and leave our warlords alone. It is I suppose (and I am sarcastic now) a misunderstanding and racism because only warlords from the Third and Fourth Worlds are arrested and put on show trials at the International Criminal Court. I don’t know and I say this without any respect, in what cloud cuckoo land they live. The First World doesn’t have warlords and the First World’s militaries are highly disciplined and effective. Where individuals go wrong and commit crimes they actually do investigations and arrest the culprits. It is plainly ridiculous to say George Bush 43 and Tony Blair is the same as an African warlord, they are not and guess what, there are no arrest warrants for them which conclude the argument. In Africa, as we know because we have seen it so often, the same cannot be said of the military which is mostly and rightly seen as crooks and shysters, rapists and murderers and thieves, a mob in other words and the worst kind of mob also.
One fellow even said and I quote “If xenophobic South Africa ever acquiesces to such nonsensical and jaundiced interpretation of international law, Africa should be united in sending them back to an era worse than the apartheid regime. If they seize Sudanese Aircraft, let Buhari take him in Nigeria's Presidential Jet. Let them go to hell and liberate it first.”
I like the above answer as it confirmed exactly what I was warning about in my books…that the arrogance of South Africans in Africa is getting a reaction you cannot believe. We are not seen as brothers but as conquerors and you may say to me so what? We are the Super Power here and we are by far (even today) the best military. No matter what contempt we have for the new South African Army & Police (and I know a lot of us reading here don’t rate them highly) there is nothing in Africa capable of winning such a war. So it is an empty threat and it must be noted the man did say he overreacted a bit. The point though is that this is their view. Screw the UN and screw the South Africans daring to uphold treating obligations and we hate you for the xenophobia attacks on our citizens (mostly illegally in South Africa). This is a sobering thought and very far away from the glory days of Mr Mandela in the nineties, shocking in fact.
Then there is the other equally ridiculous argument. They say that the Africa Union is not subjected to the UN and hence by not arresting the wanted one they showed “unity” against the West. My word, this is not a political debate but law. And the law said he stays here until we (the court) decide if he should be arrested or not. And that court order was deliberately ignored so that the man could escape and save them the embarrassment of arresting him or flaunting the court order. But I can tell them, you have no idea what can of worms you opened now.
It is on record that I don’t hold the UN or the Africa Union in any high regards. To me they are useless liberal organisations which consist of do-gooders unable to even to produce a financial record of how they waste tax payers money. I am on record stating that the money poured into Africa since the 1960s are wasted, stolen, abused and you can show me nothing which was built with it. However I can show you a great track record of Swiss Banksters accounts and waste. I can show you that it did not help Africans to start accepting responsibility and taking care of themselves. In fact, if you accept handouts you are a beggar and South Africa is one of the few countries who accept very little help, just enough to be nice.
From a legal viewpoint I can tell you that when a court is treated with contempt by leaders of a country the end is here. The courts and the law (and even lawyers who I also don’t hate highly most of the times) are all which is protecting you from abuse and giving you justice (up to a point) if abused. What happened yesterday is unheard off and those who cannot see it face a dark future. Oh and from the West the comments were equally instructive. We are now shown up as just another banana republic with all the failures which is usually attributed to Africa proper. The “I told you so” brigade in Australia had a field day and with reason too, they are right.
And yet, even in Apartheid, this was not the case. I recall when a wanted terrorist (as we called our new leaders then) landed in Bloemfontein after his aircraft was diverted. The South African Police Force (men in those days) boarded it and arrested him. In the end he had to be released, the court ordered it and the court order was obeyed. The man left the shores as is probably in parliament today. When Klaas de Jonge escaped into the Dutch Embassy he was pulled back and he too had to be released and he was. Once again a court order was obeyed. That is not the case anymore. A year ago we had an Appeal Court (the highest court in the country on such matters) here to force the police to arrest Zimbabwe Intelligence operatives committing murder and mayhem against other Zimbabweans in South Africa. We needed to go to the highest court to get the police to do their job? Really? I wonder why and then I remember history and I know why.
Where do the events leave us? Well, the court will not take this lying down and one hell of a brawl is now going to start. They will almost certainly issued warrants for contempt of court and the question is will those warrants be executed and the names on them be arrested? I have no idea but as I always say to you, if you can leave this country, go. If you have left this country, don’t come back unless you like the smell of rotting bananas.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.