President Jacob Zuma and his key security ministers plotted to ensure Sudanese President Omar al-Bashir’s safe passage out of South Africa, flouting a court order and international convention, the Mail & Guardian has learnt. The ANC described it as choosing African unity over the law.

Zuma had earlier promised al-Bashir that South Africa would not execute a warrant issued by the International Criminal Court (ICC) for war crimes. On the eve of the African Union summit, Zuma’s government quietly gazetted a clause that guaranteed immunity for all delegates.

Plans to get al-Bashir out of the country were a closely guarded secret, with officials feigning ignorance of his whereabouts.

The high court had ordered him to stay in South Africa pending the court making a final decision on whether to arrest him based on an ICC warrant.

No government minister, including the minister in the presidency and Zuma’s flak-catcher, Jeff Radebe, and International Relations Minister Maite Nkoana-Mashabane, would speak to the media about al-Bashir.

But the M&G understands that the plan to allow al-Bashir to evade justice was hatched between Zuma and four ministers whose portfolios were crucial to facilitating his departure. Other Cabinet ministers were apparently not briefed.

Too few knew

Government sources were still reluctant to share detailed information about how al-Bashir managed to leave the country this week because too few people had known about the plan. “If it leaks, it will be known [who made the leak],” one said.

The M&G knows the names of the ministers involved but cannot name them because it could compromise the anonymity of our source.

Al-Bashir’s official aircraft was flown from OR Tambo International Airport on Sunday evening to the Waterkloof Air Force Base, which is controlled by the South African National Defence Force. Zuma is the commander-in-chief of all armed forces.

Al-Bashir was escorted by South Africa’s VIP protection unit to Waterkloof and his plane took off just before midday.

But government representatives in court claimed the Sudanese president’s name was not on the flight plan, although the flight was codenamed Sudan01, indicating that a president was on board.

ICC charges

Al-Bashir is wanted by the ICC on charges of genocide, war crimes and crimes against humanity in relation to the conflict in Sudan’s Darfur region, where an estimated 300 000 people have been killed and more than two million displaced.

The AU chairperson, Zimbabwean President Robert Mugabe, told journalists at a media briefing at the end of the summit that Zuma had made an undertaking that al-Bashir would not be arrested.

“He [Zuma] said President al-Bashir would not be arrested, as he would not allow police here to arrest him,” Mugabe said.

The acting Cabinet spokesperson, Phumla Williams, said the government “will not engage in a different process in respect of President al-Bashir” because “the matter went through the court process”.

“At this stage, government is preparing to submit the investigation report as directed by the court.”

Legal crisis

The al-Bashir debacle poses a diplomatic and legal crisis for South Africa, triggering the ruling ANC to regurgitate its threat to urge the government to withdraw from the ICC.

The party wants legislators, the majority of whom are ANC, to repeal the Implementation of the Rome Statute of the ICC Act of 2002.

The party is taking the issue to its national general council, a mid-term party conference to review its programmes.

Obed Bapela, the head of the ANC’s international relations sub-committee and deputy co-operative governance minister, said his committee was formulating a discussion document on the ICC.

“It is a policy of the ANC that we remain a member of the ICC [but], given the recent events, we must review our position whether [our] membership is yielding its goals, or has the ICC been sidetracked and hijacked by forces that are anti-progress,” Bapela said.

Politics or law

He added that, regarding al-Bashir, the government had to choose between politics and the law, and it chose politics. The unity of the continent was hanging in the balance when the Southern Africa Litigation Centre asked the court to force the government to arrest al-Bashir, he said.

“We would have been seen as lackeys of the West. We had to choose between the unity of Africa and the ICC and we chose Africa. We said we can deal with the ICC later,” he said.

The debate about the ICC, its fairness and whether South Africa should remain a part of it is not new in the ruling party. At its 2012 conference in Mangaung, the ANC expressed concern that the ICC engaged in the selective prosecution of African leaders.

“[The ANC] urges the ICC to also pursue cases of impunity elsewhere, while engaging in serious dialogue with the AU and African countries in order to review their relationship,” the party resolved.

Again, in 2013, the debate resurfaced at the ANC’s national executive committee (NEC) meeting.

“It was a heated discussion,” said an NEC member, who is not allowed to speak on matters of international relations.

‘Clear evidence’

After discussing the indictment of Kenyan President Uhuru Kenyatta by the ICC, ANC secretary general Gwede Mantashe said the ICC appeared to view the weak as always wrong and the strong as always right.

“There is clear evidence that the ICC is used more to effect regime change in the majority of cases,” he said.

Bapela said some ANC leaders wanted South Africa to withdraw from the ICC because it was seemingly “a way by the colonisers to punish the colonised”.

“The view is that this instrument [the ICC] is no longer useful. It has been compromised. It is biased,” he said.

But other ANC leaders want the country to remain a signatory to the ICC and to campaign for its reform.

“There are those who say the ANC has an entrenched human rights culture and that cannot be compromised simply because of what is happening currently in the ICC,” Bapela said.

Approach not widely held

But an ANC NEC member, who wanted to remain anonymous, said this approach was not widely held.

Another NEC member said, although the discussion on the ICC was in abeyance, the al-Bashir controversy has reawakened the debate. ANC leaders had been having unofficial discussions about the matter since the weekend, the member said.

“The proposal to leave the ICC was done in an NEC meeting last year,” he said.

“What we also need to discuss is, if we withdraw, does that mean at no point will we want to go back and rejoin?”

The debate in the ANC is going on in parallel with the AU’s call to member states not to co-operate with the ICC.

African Court on Human and People’s Rights

Bapela said South Africa was committed to having the African Court on Human and People’s Rights to prosecute war crimes and crimes against humanity on the continent. The AU hoped that it would one day replace the ICC on African matters.

“Although a worrying thing is that it is under-resourced. It needs more funding,” he said.

The budget allocated for the court for 2016 is $12-million but half of that is for salaries.

The crux of the argument against the ICC is its failure to prosecute Western leaders accused of committing atrocities.

The nonmembership of the United States, as well as the protracted time it takes to prosecute those arrested by the Netherlands-based court, are other sticky issues.

‘So much wrong’

“There is so much wrong happening in the ICC. It is not designed for dealing with African countries,” Bapela said.

“And there is an issue with funding – 66% of its money comes from the EU [European Union].”

Although al-Bashir’s presence in the country caused mixed feelings, the requirement to arrest him did not come as a surprise to the government and the timing of events suggests it tried – and failed – to shield him.

On May 28, two weeks before al-Bashir landed in South Africa, the ICC formally reminded South Africa of its obligation to arrest the Sudanese president. It did so though a diplomatic memo, known as a note verbale, addressed to the South African embassy in The Hague, the seat of the ICC.

Six working days later, Nkoana-Mashabane gazetted a notice that AU delegates would enjoy full diplomatic immunity.

Netherlands ambassador

Ironically, considering subsequent events, the ICC’s note verbale became the responsibility of South Africa’s ambassador to the Netherlands, Bruce Koloane, to send home.

Koloane was the chief of state protocol when a planeload of wedding guests of the politically connected Gupta family landed at Waterkloof.

A government report into the scandal found that Koloane was a prime culprit in the national security breach, but found no fault on the part of Zuma, in whose name the landing was organised.

Koloane was appointed an ambassador soon after this incident.

This week, the ICC would not say whether it had scheduled another meeting with Koloane to ask how al-Bashir had managed to leave South Africa.

Pretoria’s position

But the ICC met Koloane on June 12, at his request. At that meeting, he presented Pretoria’s position: that South Africa had competing obligations on al-Bashir.

“In response to this, the representatives of South Africa were [told]

that there is no ambiguity in the law and that the Republic of South Africa is under the obligation to arrest and surrender to the court Omar al-Bashir,” the ICC said of that meeting. Neither Koloane nor his legal counsel at the embassy were available for comment.

South Africa was told as much again, in writing, on June 13, the same day al-Bashir landed in the country.

Possible consequences for South Africa are limited to being reported to the United Nations’ Security Council – which includes nonmembers of the ICC – but Pretoria is relying on its “good friends” sitting on that body to let it off the hook.

Russia and China

A diplomatic source said: “Russia and China are South Africa’s good friends. They will veto this matter.”

China is known for its policy of noninterference in the domestic affairs of other countries.

South Africa hopes that, if it withdraws from the ICC, more of the 34 African countries that are signatories will follow suit, a situation that would strengthen the African Court.

Sudan’s information attache in South Africa, Saif Ahmed, was said to be on leave in Sudan and the embassy in Pretoria was unwilling to release his phone number.

The Sudanese ambassador, Ali Yousif Ahmed Alsharif, was said by his personal assistant to be too busy to talk to the M&G.