Why did South Africa let Sudan's president come and go without arresting him?

One of the more depressing news items lately has been the story of South Africa’s refusal to arrest Omar al-Bashir, the President of Sudan for whom the International Criminal Court has issued an arrest warrant. Despite that outstanding warrant, Bashir was allowed to come to South Africa for a meeting of the heads of state of the African Union, and when a South African court ordered that he not be permitted to leave until the court could decide what South Africa’s legal obligations to execute that warrant were, the South African government instead enabled him to fly out of the country. The Mail and Guardian, a South African newspaper, reports that this was the result of decisions at the highest levels of the government: “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,” it says. 

That all sounds like the South African government putting political ties with Africa (and perhaps domestic politics as well) above legal obligations, and indeed that’s broadly how Obed Bapela, described by the Mail & Guardian as “the head of the ANC’s international relations sub-committee and deputy co-operative governance minister,” justified it. The Mail & Guardian quotes Bapela: “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.”

But there’s a twist. According to a news24 article, while South Africa considered whether or not to let al-Bashir leave, Sudan did not just wait patiently. Instead, “shortly after Al-Bashir left for the African Union summit,” Sudanese forces surrounded the bases of South African soldiers who are stationed in Sudan as UN peacekeepers. Moreover, the article indicates, the Sudanese forces would have been much better armed than the South Africans, because – even though the South Africans are in the country under a UN mandate – Sudan has repeatedly refused to allow South Africa to fly in additional military equipment for its troops. Fortunately for the South Africans, according to a soldier’s message quoted in news24, “The battalion commander said after Bashir touched down safely in Khartoum, all the [Sudanese] troops were withdrawn.”

Now the reason that al-Bashir’s case is before the International Criminal Court is that the UN Security Council referred the case to it.  But the Security Council also must have provided the authority for the peacekeeping operation in Sudan, and thus for South Africa’s military presence there. Surely the UN was aware of Sudan's interference with South Africa's efforts to equip its troops fully. So if South Africa shrank from enforcing the ICC’s warrant in part because its troops were vulnerable to Sudanese pressure, isn’t that attributable at least in part to the Security Council itself?

One might ask, of course, why South Africa put up with this vulnerability, and why it decided to welcome al-Bashir at this meeting when he had for years been undercutting the South African soldiers stationed in his country. Certainly the Security Council is not solely responsible for the resulting crisis, even if South Africa’s ultimate actions were driven by concern for its troops. And in any event this fear may not have been the South African leaders' motivation; they may have been committed to defying the ICC all along, and if so then the reported Sudanese troop movements were just al-Bashir’s way of hedging his bets.

One more question: If, in fact, South Africa’s political leaders chose to send al-Bashir back because they feared his retribution against their soldiers, what should a South African court say about this? There are important reasons for a court to rule on the legality or illegality of the government’s actions, as a vindication of the rule of law. But an American court might answer that it should say nothing at all, because this kind of geopolitical, military maneuvering is beyond the courts’ competence – it raises “political questions” rather than judicial ones. An American court might also defer to the executive’s view that al-Bashir had head-of-state immunity while attending the African Union summit; that position may be relatively unpersuasive legally but a US court might defer to it because of the executive’s special responsibilities in the field of foreign affairs. 

South African courts don’t generally accept that there are legal questions that they shouldn’t rule on, nor do they tend to defer to executive legal interpretations, and that commitment to principle is deeply admirable. But if there was ever a case for a South African court to avoid confrontation with the executive branch, this one perhaps is it. 

The Spear

"The Spear" is a painting. It is, or was, a brutal mockery of South Africa's President Jacob Zuma, who is portrayed posed in an iconic echo of a portrait of Lenin, looking over his shoulder towards the future -- but with his genitals exposed. It's a startling image. And after it came to public attention as part of an exhibit in May 2012 it became the cause of tremendous controversy in South Africa, with one court case aimed at taking it off the gallery walls as an unlawful breach of Zuma's privacy and dignity; another proceeding before the "Film and Publication Board" ultimately resulting in the South African equivalent of an "R" rating -- meaning people under 16 can't be permitted to see it; mass demonstrations that ultimately led the gallery to pull the painting off its walls and website; along the way, two simultaneous defacements of the painting that covered Zuma's face and genitals with obscuring paint; and now, the artist who painted the piece in hiding after threats to his life. (For a chronicle of much of this, see Phillip de Wet, "How Zuma's bid to halt 'The Spear' case was derailed," Mail and Guardian, May 31, 2012. And for the image itself, along with thoughtful discussion by South African constitutional law scholar Pierre de Vos, see "On the President, his penis, and bizarre attempts to censor a work of art," on de Vos' blog Constitutionally Speaking.)

It's very easy to understand why Jacob Zuma and his supporters would have been deeply offended by this painting. The painting can be seen as a ferocious insult, saying (all the more emphatically since without words) that Zuma's sexual appetite has debased his claim to lead South Africa's progress towards a just society. The show of which it was a part was a sustained and equally hostile appraisal of the ANC's governance of South Africa. (I won't explore here, but certainly want to acknowledge, that the same things that make the painting genuinely upsetting for some may have made it a convenient pretext for political maneuver by others.)

But it is not easy to see a basis on which this painting could be suppressed without violating the freedom of speech. Harshly criticizing the ANC is core political speech; if you can't harshly criticize the government you're not living in a democracy. Harshly criticizing the President of the country must be permissible for the same reason. Deliberately telling damaging lies about the President isn't an essential part of free speech -- but the painting's statements were not points of fact but matters of opinion. And it is a fact that Zuma's life invites the charge that he is not a leader but a libertine; as is well known, he stood trial -- and was acquitted -- on a charge of rape that resulted from his having admittedly had sex (while married) with a young woman who was the daughter of a family friend. He has also admitted recently fathering a child out of wedlock. Moreover, it is no exaggeration to say that sexual mores in South Africa are in a crisis, and that male sexual aggression is a major public policy issue; half of South African women can expect to be raped sometime in their lives, according to a recent article by Charlayne Hunter-Gault. To link sex and politics together must be legitimate political expression.

And yet: there is a history to these things. The artist, a longtime opponent of apartheid, is nevertheless white. Zuma is black. In the old days, which aren't so long ago, I understand that whites forced blacks to strip to be examined as part of the elaborate system of apartheid control over black lives. Whites looked down on blacks then, and no doubt part of their prejudice was an array of fantasies about black lust -- and these attitudes probably aren't gone now. (Anne McClintock of the University of Wisconsin describes some of these overtones in "The best way to deal with 'The Spear,'" Mail and Guardian, May 31, 2012.) Indeed, one reason Jacob Zuma might be seen as a libertine, or at least one reason that blacks might think whites took this view, is that he is a polygamist and currently has four wives -- but South African customary law permits polygamy, and so to sneer at Zuma's polygamy is in a sense to sneer at African culture.

And even if we put apartheid altogether to one side, it's possible to imagine other pieces of art like this, and to wonder whether the public figures subjected to them -- however public their lives are, and however ill-chosen some of their actions along the way might have been -- might reasonably feel that these assaults go too far. Some readers may doubt this; perhaps the point is clearest if you imagine similar paintings of female politicians. Add worldwide distribution of the images via the web (as in Zuma's case, and as perpetuated in this case by my link above), and perhaps the point will seem even more forceful.

Could free speech continue without images like this? I think the answer must be yes. A state that outlawed every image portraying someone's genitals without the subject's consent, for example, could still have strong and free political debate, and a rich and diverse and even subversive cultural life.

But could "images like this" be banned without impairing free speech in more sweeping ways? That I doubt. The logic of banning these images would extend to others, potentially many others. Ultimately we would wind up with the idea that what affronts people profoundly is potentially suppressible -- and at that point we don't have freedom of speech.

So I wind up believing that this painting was, indeed, protected free speech. Would it be better, though, if the artist had never chosen to speak in this particular way in the first place? I'm not sure. The events that followed the hanging of the painting do not strike me as a victory for liberty of expression in South Africa, but they were illuminating. To know what is upsetting is important, both to future speakers and artists who may choose to shape their expression to respect others' understandable sensitivities better, and for people as a whole, to know what their fellow citizens actually believe. But like Barack Obama, I would like to see a politics that was kinder and less virulent, and I hope for the same for South Africans.