Mbeki’s last chance to come right on Darfur

By Wasil Ali*

August 23, 2009 (WASHINGTON) — This month marks a number of anniversaries all related to the issue of justice in Darfur within the realms of the African Union (AU).

Exactly year ago the AU commission Chairman Jean Ping announced that the regional body will establish a “panel of eminent lawyers which would come to work in Sudan. This has been fully accepted by Sudan,”

He said the lawyers would include non-Africans and will conduct a similar investigation to that of the International Criminal Court (ICC) court in order to show “what the ICC did or did not do”.

Ping who is a fierce opponent of the court made the remarks from Khartoum after meetings with Sudanese officials including president Omer Hassan Al-Bashir, a month after the ICC prosecutor filed a case against him before the judges.

One must stop here and examine this unique situation where Commissioner Ping makes an announcement creating a panel on behalf of the AU members without consulting them going as far as determining its mandate and its composition.

This was the earliest sign about the direction the AU was going on the issue of justice in Darfur; The AU is seeking to protect Bashir from prosecution through creating a commission that will attempt to find ways to undermine the ICC and subsequently convince the outside world that the continent under the motto of ‘Africa can solve its own problems’ will find alternatives to the indictment of the Sudanese head of state.

In the same month, Sudan upon advice from the AU and Arab League appointed a special prosecutor to look into the Darfur right abuses. Not only that but two months later it was announced that the first suspect being investigated was the militia leader wanted by the ICC, Ali Kushayb. The latter has been previously cleared from any wrong doings by a Sudanese court and only after series of denials did Khartoum admit that it had freed him.

The Sudanese justice minister Abdel-Baset Sabdarat told the Associated Press from Cairo that Kushayb “is in government custody” and that he will be tried in Sudan’s domestic courts…..He is under investigation. He will be held accountable,”

A year later and despite Sabdarat assertions, Kushayb has not been put to trial or any other suspect. Not only that, but other officials in the government including state minister for foreign affairs Ali Karti told the London based Al-Sharq Al-Awsat newspaper in December 2008 that there is no proof to prosecute Kushayb and questioned the credibility of the witnesses.

Last May Judge Abdel-Rahman Sharfi at the Sudan’s Supreme Court and head of technical office and scientific research said that Kushayb will stand trial “when there is enough evidence”.

“Do they [international community] want us to prosecute everyone in Darfur?” he said angrily.

As it stands now, and due to backing by Arab and African countries Khartoum feels less pressured to initiate any proceedings against Darfur war crimes suspects and we no longer hear anything from Khartoum on the progress in the work of its special prosecutor.

Not only that but in March 2009, Sudanese state minister for humanitarian affairs Ahmed Haroun, another suspect wanted by the ICC, lashed out at the special prosecutor along with Sabdarat for hinting that he might be investigated.

He accused both men of taking positions “inconsistent with the state position refusing to deal with the ICC”. Not surprisingly that the next month Sabdarat ruled out any probe into Haroun activities in Darfur while he was active there. This reminds us of statements made by the Sudanese president over two years ago in which he said that Haroun “will not be removed and will not resign and will not be subject to investigations” in response to reports that the justice ministry will reopen his case.

Yet despite all these facts coming out of Khartoum and its officials showing lack of seriousness on bringing justice to Darfuris, the AU in September forwarded to the UN Security Council (UNSC) a report created by the Sudanese government showing seven cases being looked into by its courts including robbery, mischief and carjacking to prove that there are efforts being made to combat impunity.

In February 2009 the AU summit in Addis Ababa formally authorized the establishment of a “High-Level Panel of Eminent Personalities” and picked the former South African president Thabo Mbeki to lead it.

The same resolution “reiterates AU’s unflinching commitment to combating impunity…condemns the gross violations of human rights in Darfur, and urges that the perpetrators be apprehended and brought to justice….notes the steps taken by the Republic of The Sudan to address human rights violations in Darfur….reiterates the call by various AU Organs for the Government of The Sudan to take immediate and concrete steps to investigate and bring the perpetrators to justice,”

Why did the AU pick Mbeki? It is a strange choice for a fact-finding mission that requires impartiality on the part of its members. During Mbeki’s presidency, South Africa strongly and unequivocally supported the positions of the government of Sudan within the AU, UN Security Council (UNSC) and UN Human Rights Council (UNHRC).

As an example South Africa was one of the countries at the UNSC besides China that contributed to weakening of the mandate of the African Union-United Nations Mission in Darfur (UNAMID) by opposing earlier drafts of resolution 1769 calling it “totally unacceptable” contrary to the position of Ghana another African member sitting on the council at the time.

At the UNHRC fifth session in Geneva held on March 2007, South Africa worked diligently and forcefully to protect Khartoum from condemnation on its handling of the human rights situation in Darfur. This was particularly shameful for South Africa given its victorious fight against apartheid to win back the rights of non-whites after decades of oppression.

Mbeki himself clearly stated last year that he is against Bashir’s ICC arrest warrant “regardless of whatever facts might be advanced,”

In his interview with BBC’s ‘Hardtalk’ last May, Bashir quoted Mbeki as telling him after a visit he made to Sudan and Darfur, when he was president, “that Sudan is subject to a conspiracy”.

Furthermore, Mbeki’s background in itself is a ground for questioning on whether he is a suitable figure to lead the panel. It was the former South African president himself who in 1998 blasted his country’s highly respected Truth and Reconciliation Commission for publishing findings alleging that the African National Congress (ANC) members had carried out widespread torture and killed opponents during the apartheid era.

In September 2008, a South African judge found that Mbeki might have been involved in trying to manipulate the prosecutor’s office in the corruption case against Jacob Zuma.

Mbeki also stands accused by Harvard researchers for impeding the provision of medication and antiviral drugs to patients with AIDS during his term leading indirectly to the death of 300,000 of his people, a population equivalent to those who perished in Darfur.

This could be attributed to Mbeki’s ideology on the cause of AIDS being poverty and not HIV contrary to the scientific consensus on the matter. It even took an order by South Africa’s High Court to make the Nevirapine drug available to pregnant women to help prevent mother to child transmission of HIV.

But even if we were to ignore all the above-mentioned facts we need to examine the mandate of the panel specifically on the issue of justice which was never made public for unknown reasons.

Among other things, the panel is tasked with assessing “measures taken by the Sudanese authorities to address the human rights and international humanitarian law violations and other related acts committed in the Darfur region, including the role played by the Sudanese judicial system and law enforcement organs regarding the protection of the civilian population and the combating of impunity, in particular investigations of alleged violations and bringing their perpetrators to justice,”.

“Assess the Sudanese judicial system and other customary mechanisms and procedures relevant to the processes of healing, reconciliation and compensation and to what extent they can be used to address the issue of human rights and international humanitarian law violations in Darfur,”

“Examine the ongoing process initiated by the ICC in relation to combating impunity in Darfur and assess to what extent this process could affect the peace efforts underway in Darfur and in Southern Sudan, within the framework of the January 2005 Comprehensive Peace Agreement (CPA), including the elections to be conducted in pursuance of the CPA, as well as its impact on regional peace and stability”.

The panel should have no trouble at all in finding out that the Sudanese judiciary and the government are unwilling and unable to do anything with regards to bringing those responsible of committing atrocities in Darfur to court.

Over four years since the UNSC referred the case to the ICC, Sudan has done nothing to that effect but even have two of the suspected individuals sitting on the cabinet including Haroun and convicted felon Janjaweed leader Musa Hilal. The Sudanese president has even blocked attempts by the attorney general in 2007 to investigate Haroun.

Moreover, the panel did meet many lawyers and former judges in Sudan who acknowledged that no fair or genuine trials can take place in the country. Khartoum has no vested interest in making that happen. The former AU commissioner Alpha Konare did urge Bashir in 2004 to move on the issue of war crimes and despite promising to do so nothing saw the light.

In fact Sudan has appeared to move seriously on the matter only immediately after the ICC prosecutor formally opened an investigation into Darfur in June 2005 and in August 2008 when Bashir case was filed with the ICC judges.

The report submitted by the African dominated Darfur UN Commission of Inquiry concluded that the Sudanese justice system “is unable and unwilling to address the situation in Darfur” due to executive interference and the laws in place that “contravene basic human rights standards”. It also cites victims concerns who expressed “little faith in impartiality of the Sudanese justice system and its ability to bring to justice the perpetrators of the serious crimes committed in Darfur”.

This is the litmus test for the panel because if they were make any findings on the Sudanese judiciary different than that of the UN Commission it can safely be assumed that they have not acted with impartiality.

But what is alternative to Sudanese courts? Would the panel dare to say the ICC? Probably not as Mbeki told Agence France Presse (AFP) last month that they will address the justice issue “in a comprehensive manner that has been suggested by our interlocutors [AU]”.

“Our principal — the body that formed us (AU) — has said ‘delay the serving of those warrants’,” Mbeki said.

What about hybrid courts? Sudan has rejected the idea since last year. In February the deputy Sudanese ambassador to Ethiopia Akoy Bona Malwal said that the Mbeki panel will evaluate the ability of Sudanese courts to look into crimes committed in the Sudan’s western region since 2003.

Malwal said that if the panel is not satisfied with the performance of Sudanese court then a hybrid court could be setup to conduct trials.

However, the Sudanese ruling National Congress Party (NCP) political officer Mandoor Al-Mahdi in an interview with the Qatar based Al-Jazeera TV overruled Malwal’s remarks saying that “non-Sudanese judges will undermine the credibility of Sudanese judiciary and its pride”.

In the alternative if the panel was to suggest reforming the Sudanese judiciary it will be an unacceptable solution to Darfuris and rebel groups as it requires a non-existent political will on the part of Khartoum to begin such a process and much time that has already been squandered by the government.

In addition to that it must be remembered that the AU will not adopt any recommendations not favorable to the Sudanese government. The AU resolution in July halting non-cooperation with the ICC essentially killed the work of the panel and showed in no uncertain terms that the AU is not impartial on the issue of Darfur and is siding with Khartoum.

And even if the panel was to be courageous enough and tell the AU the truth about prevailing impunity in Darfur, the Sudanese government is not prepared to abide by it and African countries are not expected to put any pressure on it to do so.

The Sudanese president has in a number of occasions hailed the AU panel and its members and other officials have expressed hope that the commission will find a way out of the ICC row that is backed by the continent.

The Sudanese presidential adviser Ghazi Salah Al-Deen told Al-Jazeera TV last month said his government “trusts the intentions” of the panel “because it does not stem from a colonialist mentality”.

“What is more important than prosecutions is the issue of reconciliation. This is African justice that is more like African justice and African breath and more like African spirit….We are awaiting what the Mbeki’s panel will present and they are focusing and directed towards this angle [reconciliation] and we are satisfied for what results from their recommendations” he said.

It can be therefore concluded that the AU panel is one established by an impartial body for one specific reason, protecting Bashir from prosecution hence the warm welcome by Khartoum to its work. Mbeki himself is not the right figure to lead the commission given his background.

The facts are clear to anyone who closely monitored judicial developments in Darfur. Sudan does not recognize that heinous crimes were committed in Darfur and therefore it is not expected that they will be serious about going after any of the suspects.

Mbeki’s panel is faced with a dilemma; they have to balance the wishes of Khartoum and the AU with that of the realities of the situation in Darfur. Whatever choice they make, the panel must realize that the whole world is watching them to see if Africa is capable of acting with conscience after its shameful stances in the past that have prolonged the sufferings of Darfuris. It is up to Mbeki to determine his own post-presidency legacy even if his recommendations end up in the shelves of the AU. It is his last chance to redeem himself before the people of Darfur.

* The author is a Sudan Tribune journalist, and can be reached at [email protected]

(ST)