Al-Bashir is an odious man whose racial genocide against black Africans and crimes against humanity have been so egregious that the International Criminal Court (ICC) felt compelled to indict him in 2009. But in doing so, it overreached itself and put its own existence at risk.

It is the same reason that South Africa’s own Constitutional Court has generally been prudent in its approach to implementing the letter of the constitution, pushing laws to the very limits of its power, but careful not to make a ruling that will provoke a constitutional confrontation with the executive which it would surely lose. The result would be calamitous for the court and the nation.

The ICC prosecutors were not wrong, but we live in a world where might is right and this was a step too far. Just issuing the warrant had dire consequences on the ground at the time for the people in Darfur. Nobody can predict the consequences in Sudan if al-Bashir were arrested, but it is unlikely they would be good. As we have seen all over Africa, taking out one leader doesn’t bring peace.

The UN Security Council even considered suspending the ICC warrant in the interests of reaching a diplomatic peace, but al-Bashir carried on defiantly with his war on the civilian population.

A copy of the court order by High Court Judge Hans Fabricius instructing the government to prevent Omar al-Bashir from leaving the country. Photo: FameAfrica/Twitter

The extent to which the High Court of South Africa bravely tried to uphold international law (and hasn’t backed down but is now taking the government to task) should make South Africans proud of the institution. South Africans should also stand up for the civil society organisations that brought the court action.

The fact that the South African government essentially disobeyed the court ruling does not however mean we have an evil or lawless regime. At least al-Bashir seems to have had to leave the summit early, perhaps not entirely confident that the South Africans wouldn’t change their mind as things heated up. But without the support of the AU or a back channel nod from al-Bashir’s subordinates in his country, arresting him would have had much worse consequences for South Africa than doing nothing.

On two previous occasions the South African government had said it would arrest al-Bashir. This time it tried its best to respect both international law and the reality of regional politics. It hoped it could get away with it through legal technicalities creating wiggle room (al-Bashir was a guest of the AU not South Africa in the way UN delegates have immunity when going to New York; his arrival was advertised in the government gazette under the Diplomatic Immunities and Privileges Act, and so forth). But when you’re dealing with al-Bashir you’ll never emerge from the engagement with clean hands.

Al-Bashir is not alone among the delegates; he is simply unlucky enough to have a warrant out for his arrest. There are several sitting leaders in the AU steeped in blood that should also be kept behind glass at the summit – their excellencies Mbasogo, Dos Santos, Mswati, Kenyatta, and of course the wily Mugabe ¬– to name the worst of the continent’s rogues’ gallery. Collectively they make a mockery of Africa in the eyes of the world, but it’s hardly unique in world politics.

(From right to left) African Union chairman President Robert Mugabe converses with Kenyan President Uhuru Kenyatta, Senegalese President Macky Sall and Sierra Leone President Enerst Bai Korama during the AU Summit in Sandton, South Africa. Both Mugabe and Kenyatta are also steeped in blood. Picture: Joseph Nyadzayo

What is contemptuous is the subsequent political rhetoric and idiotic remarks made by the ANC and various figures in the South African government. One example is provided by the chairperson of the parliamentary portfolio committee for international relations, who called the civil society organisations that brought the action opportunistic and accused them of trying to set Africans against Africans and “hijack” the summit.

But these are merely desperate attempts to save face. The reality is South Africa has been humiliated on the world stage by one of Africa’s worst leaders and put at odds with its own constitution. It should never have agreed to hold the AU summit while al-Bashir remained in office.

Government claims that the ICC is picking on Africans is about as big an admission of guilt as one could make. “You’re just picking on me,” is the typical defence of a guilty person caught red-handed. The fact that the ICC has not indicted Tony Blair or George W Bush doesn’t make al-Bashir any less guilty.

Africa’s leaders ought to be supporting every effort to remove blots like al-Bashir from its continent. The reality is an ICC arrest warrant for an incumbent is not a fruitful or realistic strategy. What the continent is prepared to do in its absence is the real question we should be asking our leaders.