You will know I always say the law is neutral and can be abused or used to good effect. It will never change and the way the game is played. I see the government decided to appeal against the order to keep the President of Sudan here to be extradited to stand trial. Since the man already absconded with his tail between his legs you have to wonder why the appeal and the answer is easy – the courts (as I predicted and many others, it does not need special skills) will not take this insult lying down. I am not surprised about the appeal, they have no choice and neither does their legal team, if they lose this they may well be disbarred. There is a very real risk of that happening but I hope not.
What happened, just to recap briefly, is that an African Union Conference took place here and as it is with such conferences no one could be bothered or care except to curse the convoys of very important people (that is dictators and those cynical enough to think they are important because they have the gift of the gab) travelling around. Such conferences mean nothing to the man on the street though I heard the prostitutes made a killing. It is a known fact that they rightly see such conferences as big business and one American liberal called Angelina Jolie apparently arrived to give a speech. What she talked about I have no clue. I am sorry but I switch the television to Micky Mouse and the Seven Dwarfs when people like her open their mouths. I am, as the Queen Victoria apparently did not say so many years ago, not amused to hear their views. But then a constitutional bomb exploded. A local NGO approached the High Court (once known and respected as the Supreme Courts) for an order to arrest the Sudanese leader. Why? Because the International Criminal Court wants him to stand trial for human rights abuses including, I hear, genocide running into hundreds of thousands of innocents. Obviously he denies it but he has yet to face his peers which also say a lot between the lines. If you are really innocent you have no fear to go to court and tell your side of the story, you don’t run away all the time. That is my view.
So why was he not arrested and allowed to escape (denied by the State, they have wonderful reasons of incompetence including a passport which was not checked and blah blah blah, who cares, watch the news for the show). We deal with facts in my world and the fact is al-Bashir left the country despite the court order holding him here until they decide on the arrest warrant. Ah and then the great legal arguments. Some idiots with no local legal knowledge argued that he has diplomatic immunity as Head of State. They obviously don’t know that the Rome Treaty, signed by South Africa but interestingly not by the USA, overrides that immunity for the simple reason that it is abused to escape justice. Hence in our law he had no such thing as diplomatic immunity. I say again that the usual Head of State immunity did not apply but the court order keeping him here most certainly did. The lowest constable could have arrested him and in most other countries would have done so. The fact that a court order is needed to get the police to do their jobs is pathetic but not unheard off these days. It is sad and indicative of what we are dealing with here.
And yet, despite the court order which everyone knew about he was allowed to bolt by running for his private jet and flying into the sun doubtless crying in relief when the South African Air Force Gripen fighter jets did not scramble to bring him back as they should have done. Now it is interesting to me that he does not travel to First World countries and you know the reason why…he will be arrested and is too scared to go there. South Africa is not your normal Banana Republic by the way. Not in law it is not. We have an advanced constitution build on Human Rights and a powerful judiciary that prides itself in being neutral and fearless. This is not even discussable - remember what I said on parachutes in a previous blog. It is not the thin blue line standing between you and abuse, it is the courts. That is where you find justice or evade justice if rich enough or actually innocent. We have good lawyers too, in fact, as pointed out in some of my books, we have trained lawyers for more than a hundred years and it is the elite few who make it. We know what we are doing and we do look down on the European and American variety when they come here, this is our sphere.
The court responded a week later by giving their reasons for the order and asked the National Prosecutor to see if a crime has been committed. Now this may sound lame to you but let me tell you, it is the start of a battle des royal between the judiciary and the government. The crime, when you blatantly refuse to obey a court order is contempt of court and at times obstructing the course of justice. You go to jail for such insults and it is seen in the most serious light available. Ah, but there is a legal catch. What if the court order was not legal to begin with? Then you cannot, surely, be expected to comply with it? And there you have it, the appeal to escape justice and it will go on for years to the highest courts whilst the culprits hope they get (a) a presidential pardon or (b) time to flee to Sudan or (c) somehow win in court which is doubtful to every legal professor including the liberal ones. They get the danger of what took place as clearly as most of you do.
The State's chances are zero to win in court in my opinion and many others. No matter which way they spin and run they are in deep trouble but you know, when you have unlimited tax payer money you can play this game a long long time. You just bat it off and confuse the matter and ensure that you get public sympathy in pointing out they prevented a war and our soldiers were threatened in Darfur (in Sudan). About soldiers on a peacekeeping mission being threatened I am shaking my head in disbelief, firstly Army HQ denied it and then went quiet as the spin doctors bashed their heads and secondly, what the hell? In my days you threatened a South African soldier once and then begged for forgiveness when he kicks seven sorts of (you know what) out of you. It is anyway a moot argument, even if they were threatened, which Army HQ denied, the law must take its course. But since they were threatened, which they were not, why are they not withdrawn and let the Sudanese people then die in peace? It is a waste of money to begin with to be there.
We even had many Africans threatening war with South Africa on the internet if the man was arrested…my simple answer is come and try your luck. Any time any place. We are the big brother here, get used to it but don’t even think you have the military capability to take us on. I travel and work in Africa, I know what a joke your military is and if you don’t believe me, look at history and see what we did to the Cubans in Angola. They executed their commanding general to celebrate their so called “victories,’ how strange. We will destroy you as we did in the 1980s and we don’t take kindly to threats. It is not the South African way to do so. We are extremely violent people at times.
But then I have to wonder what happened to the rainbow nation, once the darling of the liberal world and about to prove to everyone that an African Nation is able to compete on the world stage regarding the rule of law. Oh yes, this was back in the 1990s, a time of hope I vaguely remember. Where are Nelson Mandela’s dreams these days, I don’t see them anymore. You only have to read the excuses and righteous condemnations of the liberals to get the answer. We ran out of excuses the day a High Court order was ignored (also predicted by me). This, my friends is how you evade justice, you abuse the law and hope to get away with it and too many do. But also note, I said evade, not escape.
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.