Expel Bashir from Sudan before he turns against the revolution

If you’ve read and comprehended history, you know political revolutions usually consume their young in a fit of rage and calumny. That’s why the gallant Sudanese people – who in the last couple of weeks ousted dictator Omar al-Bashir – must be wary of the voracious demon of the revolution.

As a general rule, those at the forefront of a new dawn often never harvest its fruits. That’s because a revolution eats its young. You can’t make it up, or script it. It just happens when stuff comes apart at the seams. Mr Bashir is now in the Kober dungeon. He’s still dangerous. That’s why the revolution is unlikely to be secured unless he’s out of the country, or dead.

The Sudanese people shouldn’t kill Bashir, or do a Gaddafi on him. If they do, the dictator’s blood will haunt the revolution and turn Sudan into a failed state. I know Uganda’s Yoweri Museveni – another dictator whose time has expired – has offered Bashir protection in Uganda. You know the saying – birds of a feather flock together. Zimbabwe’s Robert Mugabe offered protection to Ethiopia’s Mengistu Haile Mariam. The Saudi king offered protection to Uganda’s Idi Amin. Dictators have each other’s back. But Uganda is too close to Sudan, and Bashir could make mischief from there. This is what I say – let’s not be vague; let’s take him to The Hague. That’s the only smart choice.

I’ve read knuckleheads and bloviators online ranting that the International Criminal Court (ICC) is a colonial court, and so Bashir shouldn’t be taken there. Utter foolishness.

Sudan itself is a colonial (OK, if you wish – post-colonial) country. So, if ICC is a colonial court (which it isn’t) what’s wrong with taking its post-colonial dictator to the colonial court? You can see the irony of the paralysis of analysis.

The ICC is a hegemonic institution anchored in an unjust international legal order, but it’s not a colonial court. Don’t forget the largest bloc of ICC signatory states are African –  more than thirty. And they signed voluntarily, including Kenya. Kenya has even domesticated the ICC in its laws and legal system.

So, please spare me the juvenile rants. The ICC has issues, but being colonial isn’t one of them. Rather, it’s a bumbling institution infected by several original sins. First, the US weakened its statute and then refused to join it. Second, except European states, other hegemonic powers such as China, India, and Russia have refused to join it. Third, the UN Security Council, an obsolete relic of the post-war American-led order, has enormous power over the ICC. The council, a political body, must never have been given supervisory powers over ICC, a judicial body. Fourth, the Assembly of Parties, the ICC’s guarantor, is diseased with the cancer of politics. Finally, the ICC has itself badly stumbled operationally.

Mixed results

The ICC’s founding Prosecutor Luis Moreno Ocampo crippled the court before it even started. He left behind a deeply wounded institution that Fatou Bensouda, his successor, has been trying to revive with mixed results. One of those wounds is self-inflicted.

The selective prosecutions of blacks and Africans at the ICC has greatly damaged its credibility and given hypocritical African dictators the cheek – who know and care nothing about Pan-Africanism – to accuse it of “hunting Africans.” That’s the rallying cry the African Union used to shield Bashir, accused of genocide, war crimes, and crimes against humanity, from the ICC. Shame on the AU. But the ICC can recover. Let’s not throw the baby out with the bath water.

Bashir may just be what the doctor ordered for the ICC. Bashir deserves the ICC. Ms Bensouda needs Bashir to redeem the ICC. Bashir is a hot potato in Sudan that will kill the revolution if left there. He’s too large for the Sudanese system to deal with. His tentacles reach deep into the society and virtually everyone with any power in Sudan is beholden to him.

The only way to prevent him from infecting the revolution is to expel him from Sudan – the way the body excretes refuse. That’s the only way to disinfect Sudan of him. He’s a total contaminant. Let the ICC do Africa a favour and take him off our hands.

Kenyans have unprincipled and selective memories about the ICC. The Kikuyu and the Kalenjin opposed it because they saw it as blocking their kinsmen’s path to power. It wasn’t about guilt, innocence, selective prosecutions, or politicisation. It was pure tribal myopia. We know the ICC was defeated in the Kenyan cases not because of lack of evidence but due to state sabotage, skullduggery, and poor investigations. Sudan can cooperate with the ICC to bring Bashir to justice. Sudan badly needs the ICC.

The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC.  @makaumutua.