Tuesday, 23 June 2015

International Criminal Court and al-Bashir: Imagine King Mswati were charged by ICC

(By Pius Vilakati, writing as Mr Pius Rinto)

1.    Introduction

A lot has been said about the recent visit to South Africa by Sudan’s president, Omar al-Bashir, to attend the African Union (AU) summit, and his eventual exit from South Africa. Some have condemned the South African government for allowing al-Bashir to exit South Africa without handing him over to the ICC, relying especially on a court case that had ruled that Al-Bashir must not exit South Africa and the fact that South Africa is a member state of the ICC. Some, of course, have praised the government. Indeed, if South Africa has prevented al-Bashir from exiting the country, South Africa would have been seen as an unpatriotic and unAfrican state.


The unreliability of the ICC has been well documented, especially when one considers that some of the worst murderers in this world today are the United States of America (USA), Britain, and Israel. All these three have not even received a warning from the ICC, yet African leaders have been prosecuted in The Hague. This clearly shows that the ICC is nothing but a tool to be used by the powerful against the weak. There can never be a claim that there is any justice in a society where the law enforcers choose which criminals to arrest and who not to, even when it is clear that they all have cases to answer.

Currently, 123 countries are States Parties to the Rome Statute of the ICC. Out of them a staggering 34 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 27 are from Latin American and Caribbean States, and 25 are from Western European and other States. It is noteworthy that the USA and Israel are not members of the ICC. Further, we should note that, despite the United Kingdom being a member, its former Prime Minister, Tony Blair, was never prosecuted for his country’s role in the Iraq war in 2003, a war which was without a United Nations mandate and which saw the death of thousands of people. We further note that, whilst Sudan is not a member state of the ICC, al-Bashir was charged by it, yet former USA president, George Bush was never prosecuted despite leading the Iraq war.

If we look at the member states of the ICC, it is clear that Africa supports (or supported) the ICC. A change of heart has emerged, however. African leaders no longer want to be subjected to the processes of the ICC and have called for African solutions to Africa’s problems (although there is nothing African about murdering other Africans. It is simply a crime against humanity).

2.    If not ICC, then who?

Whilst some commentators, especially some those who claim to be Africanists, have overwhelmingly supported the view that Africa must withdraw from the ICC and solve its own issues without interference by either Europe or USA, some of us are not fooled at all! The fact of the matter is that some African leaders, such as King Mswatii III of Swaziland, are not only against the Rome Statue having jurisdiction over them, but in fact do not want to be bound by any law, whatsoever. They just want to be the law. Why then should we support these selfish, murderous African leaders? The People’s United Democratic Movement (PUDEMO) and all sensible revolutionaries should not!

For the record, Swaziland, just like Sudan, is not a member of the ICC. This is one of the reasons the ICC gave to the Swaziland Solidarity Network (SSN) when it declined to prosecute King Mswati.

Leaders like King Mswati III, Omar al-Bashir and Robert Mugabe, amongst others, will simply never want to account to anyone for their rule. King Mswati, for example, in July 2005 signed Swaziland’s constitution. Section 2 of the Constitution provides that the Constitution is the supreme law of Swaziland, and if any other law is inconsistent with the Constitution that other law shall, to the extent of the inconsistency, be void. Further, section 2(2) provides, “The King and iNgwenyama and all the citizens of Swaziland have the right and duty at all times to uphold and defend this Constitution.” According to the constitution, a criminal charge of treason is mandated against those who undermine this provision, including the king who is also mandated to defend, and be subservient to, the constitution.

Despite the above provision, King Mswati has violated this constitution many times! He has done so without any repercussions whatsoever. Instead he has continued to enjoy the respect and support of the African Union. The king, despite the constitutional supremacy provision, is above the constitution. He is the law of Swaziland, and the constitution is only valid as and when King Mswati wants it to be.

3.    If Mswati were charged by ICC

Due to the undeniable fact that King Mswati is practically above all Swaziland law, and that the AU will not charge him any time soon, only the most foolish would ever come in defence of Mswati if he were to be prosecuted by the ICC. As recent as 2008, Mswati made a clear call to his security forces that they were to deal with all human rights activists in the most vicious of ways and totally disregard all international conventions and laws. When appointing the current Prime Minister, Barnabas Sibusiso Dlamini, in 2008, Mswati stated clearly that he was appointing him to go and throttle these activists and finish them all. Since then, many activists have been arrested, tortured and some killed by his security forces, with some being forced to exile.  In a just world, he should have been prosecuted for violation of the constitution.  

Before this episode, many people had been evicted from their homes, some fired from their jobs, all in total disregard of court orders to the contrary. PUDEMO’s president, Comrade Mario Masuku, is the most arrested political activist in Swaziland. He is currently in jail, having been arrested on Workers Day, in 2014, charged under the Terrorism Act of 2008 for addressing workers and rallying them on the call for multi-party democracy. He has previously been arrested for sedition, treason, and sometimes detained without any trial. All this on the direct orders of King Mswati.

If the ICC is nothing but a vulture which always wants to feed on the carcass of a dead animal, then Mswati is also one. They are all of the same further. If the ICC is nothing but a criminal entity, then it is a criminal entity which arrests other criminals, fairly or unfairly. Let vultures eat themselves! In fact, if Mswati were to find himself weak and alone in the wild, with many vultures hovering over him, as PUDEMO and all revolutionaries who are serious about the freedom of Swaziland, we would have to remove all the animal carcasses that might be lying around so that the vultures can concentrate squarely on him, and him alone, to do to him as they so wish!

Therefore, we should always pronounce on international issue, condemn the wrong things. However, in so far as these murderous leaders like King Mswati are concerned, we must simply let them be tortured! They do not care about Africans. Why they should we go all our way to defend them?



Let Mswati be fried by the International Criminal Court! 

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