The African Union summit of June 2015, held in South Africa, will be remembered for all the wrong reasons – not the least of which is South Africa’s betrayal of its own constitutional order and the ignominious surrender of its honour as a State.
As the drama unfolded, the world was witnessing a real-life suspense thriller in explosive detail on every media device connected to the net. A thriller which had it all. High stakes and fast-paced action leading up to a pivotal moment. We watched as a head of State faced a courtroom drama which could see him see him nabbed on an outstanding international arrest warrant in the midst of divided public opinion, and while his host country was faced with a diplomatic dilemma. As getaway plans were hatched, motorcades were racing and the clock was ticking. Rumours hatched of soldiers having a face-off thousands of miles away and a getaway plane running its engines at an Air Force base while the main character had apparently gone missing.
Omar Al-Bashir, President of Sudan, probably sat back with a sigh of relief and a smug smile in his presidential jet as the winter grey of South Africa’s capital faded from view at the very moment the South African government’s lawyers were on a court recess, supposedly to establish his whereabouts. This, despite the fact that the same court had the day before ordered that he was to remain in South Africa and that the SA government was to ensure that the international ports of entry/exit were informed of the same. Interrogating the detail of what transpired between the granting of the court order during the afternoon of 14 June 2015 and Al-Bashir’s lift-off around 11:50 am some 20 hours later, reveals an astonishing and inescapable inference of collusion and downright brazen dishonesty perpetrated at the highest levels of power.
As a law student at University of Pretoria, this writer had the privilege of attending the law of evidence lectures of one Prof Kotze, who hammered home the point that the devil is in the detail. At another time a senior counsel at the Pretoria bar told me that advocates are in reality ‘fact mechanics’, able to dissect the minutest parts of factual evidence in order to assemble the greater picture. Very often the greater picture is left with holes so large that it becomes impossible to plug them without producing absurdities.
Let’s apply those wisdoms to the al-Bashir thriller by using as reference the known facts regarding protocol and procedure as it emerged from the Guptagate saga and other sources. We do so because the issues at stake are similar and thus the nature of the evidence pertaining to those issues are also similar. The time line of events are equally relevant and important, as are the explanations and omissions by government in its explanatory affidavit filed on 25 June 2015. Merged into one picture, the facts, the timeline and government’s own latest version make for some serious evidence of impropriety by the South African state, who supposedly ascribes to the concept of the rule of the law in a constitutional democracy.
The issues under scrutiny in the Guptagate saga were as to the how, who and why: regarding authority that was granted to land at Waterkloof AFB, the protocol and procedures required and applied to passengers during that landing, base security relating to entry, exit and presence on the base and finally, the protocol of formal motorcade escorts and ViP protection security details in the form of SAPS and other law enforcement personnel.
On Sunday, 14 June the North Gauteng High Court ordered that al-Bashir was to remain in SA until final judgement and that the Department of Home Affairs was to ensure that all international ports of entry/exit in SA be informed to not allow al-Bashir to leave. The matter was stood down so that the SA government could file its response to the application by the next morning, 15 June 2015 at 9 am while the court would then resume the hearing at 11:30 am. The timeline is important because it provides, as you will soon see, the most obvious indication of conniving by the authorities.
Hours after the Sunday court adjournment, during the evening of 14 June, the Sudanese presidential jet is moved from its location at O.R. Tambo International Airport, to the by now infamous Air Force Base at Waterkloof. The first piece of the puzzle goes missing with this movement of the plane. For such a relocation to take place to an Air Force base, prior permission sought by the Sudanese would have to have been formally directed by Sudanese authorities to the Department of International Relations and Co operations (DIRCO). The latter would then have to formally forward such a request to the SANDF, more specifically, the South African Air Force’s Air Command Post who, in turn, would have the sole power in granting or denying such a request, again through a paper trial of a duly granted landing authority and instructions to Waterkloof base as to the landing, the purpose and the duration of the plane’s presence at Waterkloof.
If by now you’re starting to suffer from deja vu, that would be perfectly normal, as these processes were thoroughly thrashed out during Guptagate. What’s more, the requesting party, i.e. the Sudanese authorities, would have been under an obligation to motivate the reason for the request. Anything short of the described process would constitute a flagrant and deliberate deviation of established procedure for proper Air Force security and operational control. The question therefore arises, was this procedure followed? If so, where is the documentation which would bear this out? During Guptagate, a primary accusation falsely made against Lt Cols Anderson and Van Zyl was that normal procedure for landing at Waterkloof was flouted. The State was virtually compelled during a Board of Inquiry to produce the authority documentation in an attempt to prop up its false accusations. That very documentation sunk the State’s case and in fact proved that formal procedure had been followed to the letter.
In his explanatory affidavit the Director General of Home Affairs, Mkuseli Apleni, states that he had been “informed that the aircraft of the Sudanese President was [re]located to the Waterkloof Air Force base for security reasons and refuelling’’. Does the State have the same guts to show us the relevant authority documentation (similar to Guptagate’s refuelling authorities, payments and reasons why ORT couldn’t provide fuel, as well as the nature of the security concerns) in this instance? If not, one has to ask: Why? Of even greater concern is that Apleni omits this important information from his affidavit. Why? Is it perhaps because referring to these procedures would open too many new avenues of cross-checking his version? Tellingly, Apleni also fails to inform the court who told him the reasons for the plane being moved. Instead he hides behind “security reasons’’, in the obvious hope that any further probe into the real reasons for moving the plane could be covered in national security obscurities.
Apleni apparently expects the court to accept on hearsay that there were legitimate reasons for moving the plane and further, that it is apparently unnecessary to investigate or peruse the corroborating documentation related to such a relocation. Where are the testimonies of the officials through whose desks these documents went? They were called during Guptagate, so why not now?
The veteran defence journalist, Erika Gibson, last week published the other nagging factor which bodes badly for Apleni’s explanation of the aircraft relocation. She pointed out (based on source documents in her possession) that the aircraft itineraries for visiting diplomatic planes are meticulously mapped out in operational schedules. This means every plane has a mapped point of landing, storage, duration and point of departure. According to planning for the Sudanese jet, it was to land and remain at ORT, from which it would also depart on 15 June 2015. These operational schedules are updated on a daily basis but, oddly, on the morning of 15 June, there was no update or change to the operational schedule of the Sudanese jet. This, despite the fact that the jet had already been moved (supposedly on proper authority) to Waterkloof the previous evening. Apleni fails to reveal or explain these rather odd facts to the honourable court. Again one has to ask: Why?
The second piece of the puzzle is the movement of Bashir from his Sandton hotel to his jet at Waterkloof on 15 June. According to Apleni, DIRCO was requested by the Sudanese presidential delegation (remember, all of them arrived with their president) that a security detail be provided for them to move from Sandton to Waterkloof Air Force Base. DIRCO then contacted SAPS protection services, who organised the necessary security detail accompanying the motorcade. The trip occurred and he later explains how the motorcade delegates were checked in at Waterkloof base and then flew off after, by implication, the South African state was duped into thinking Bashir was neither in that motorcade nor boarding his own presidential jet. Let’s pause here for a moment.
Firstly, the procedure of requesting the security detail for the purpose of the movement is correctly explained by Apleni. Secondly, however, he commits several material omissions. Security details accompanying all VIPs in South Africa are centrally controlled and managed from a Joint Operational centre – an entity where the SAPS, SANDF and State Security centrally operate on a 24/7 basis. This is where the Sudanese request would have to have ended up, and from where the SAPS security detail would have been instructed. This fact is important for two reasons: the Commissioner of Police (and thus SAPS) is a Respondent in this case and was under an equal obligation to prevent Bashir from leaving and, importantly, protection protocol in any country in the world, including South Africa, dictates that the members of the security detail are given very specific mission instructions. They are always told who they are protecting and moving (especially when the target is a head of State), where they are going to, which route is to be followed, how much time is allowed and the end goal of the mission. Importantly, the protection team leader is at all times during the execution of the mission in communication with his other team members as well as the joint operations centre. The status of the mission and its successful completion is always reported back to central operations.
Why does Apleni omit these facts? Because given these procedures, it becomes impossible for South African government and, at the very least, the SAPS, to explain how it is even possible that the authorities could not have known that the president of Sudan was being escorted and protected on a trip to Waterkloof. The legal counsel for the State was in fact at the very moment of Bashir’s movement implying to three judges that his clients (including SAPS) were attempting to locate the whereabouts of Bashir! This is the most brazen misleading of a court by a post ’94 government ever.
Apleni expects the court to be satisfied on the flimsiest of explanations, skimming the top of a myriad of rather inconvenient facts. He fails to inform the court at what time the Sudanese security detail request and planning occurred. Again, such an explanation would require him to deal with the inconvenient fact that if it had occurred that morning before the court started at 10.30am, then the State would already have known it was going to escort and protect Bashir at a specific time to Waterkloof. Admitting this after the fact would land the State respondents in a heap of trouble, given their explanation to the judges that they were attempting to locate Bashir at that time. Again, where are the testimonies of the actual security detail officials who were escorting Bashir’s motorcade? Protection personnel were called in Guptagate related investigations, why not now?
Apleni sets out in great detail the story which, apparently in his mind, would vindicate the State from contempt proceedings. In short, his story goes that once the Sudanese delegates arrived at Waterkloof, two of their representatives, accompanied by one DIRCO official, took all the delegates’ passports to the Home Affairs official on duty, who established that Bashir‘s passport was indeed not among the batch being stamped. They then boarded the plane and off they went. It is astounding, but true, that people boarding a diplomatic flight are extended a so-called ‘diplomatic courtesy’ in that each individual person is not physically checked against his or her passport when boarding at Waterkloof. One would think, after the uproar of Guptagate concerning the security of that base and the related immigration control issues, that by now the “courtesy” would have been abandoned. This practice is certainly a security gap of note. It is also the gap by which Apleni now seeks to score a no contempt goal. Apleni refers to 39 passengers and 12 crew, but his corroborating passenger list contains only 40 names. He fails to explain the discrepancy. He attaches email correspondence between him and the regional Home Affairs official (of which part has been censored) but which clearly shows the official informing him at 01.24pm of 15 June that Bashir is not on the passenger list. Oddly, Apleni doesn’t even attempt to explain how it is possible that the State counsel already gave the court the same information about Bashir not being on the list, shortly after 10.30am, some three hours before Apleni even got confirmation. By Apleni’s own version, Bashir committed a criminal offence by leaving South Africa at a port of exit, without presenting his passport and the Sudanese officials knowingly aiding that illegal departure would be Bashir’s partners in that crime. He doesn’t even attempt to inform the court what he, as the Director General, is going to do about the fact that an immigration act violation has been committed. Seemingly this is of no consequence to the top official, who is supposed to enforce the law on immigration in South Africa. Either that, or Apleni simply didn’t think through the actual implication of his concocted passport and passenger list story. (Conversely, it is, however, seemingly a heinous crime to attempt to leave South Africa with your child without having an unabridged birth certificate.)
While on the issue of the delegation’s presence on the base itself, it is worth noting another inconvenient fact, also pointed out by Erika Gibson. It is a fact which Apleni also omits and which ties in nicely with what I explained around the protection detail. Eyewitnesses have confirmed that when the Bashir motorcade entered Waterkloof, all the cars proceeded to the immigration section, save for one, which contained Bashir. The latter’s car, once inside the base, peeled off the convoy and headed straight for the presidential jet. There is no way that such a manoeuvre would not have been part of the security detail’s mission planning. The mission commander in the security detail would almost certainly have reported his package safely aboard, which indeed would doubtlessly have been the mission objective. It becomes blatantly clear that the ‘leave his name off the passenger list’ plan was contrived and deliberate. It was designed to serve as convenient excuse at a later stage. The real question is: who omitted Bashir’s name from the passenger list? Did the Sudanese mislead DIRCO when they sent through the names? Did DIRCO know Bashir was going to fly but knowingly send a false list to the Air Command Post? Again, where are the testimonies of those officials involved in compiling and forwarding the passenger lists between DIRCO and the Air Command Post? They were called in Guptagate, why not now?
Another significant omission by Apleni relates to how it was at last confirmed that Bashir was in fact on the plane. The jet lifted off Waterkloof at 11:50am whilst the court was in an hour long recess. An hour later the State counsel informs the court that he had asked Apleni to establish whether Bashir’s plane had taken off and whether in fact Bashir was on board. This implies, that after Bashir’s jet had already been airborne for more than an hour, the State was still apparently unaware that Bashir was on board. Almost another hour passes before State counsel confirms to the court that Bashir is indeed on the plane. Apleni fails to share with the court what exactly transpired in those two hours when he and his public service colleagues were supposedly looking for Bashir. He also fails to reveal who informed the State counsel that Bashir was on board or how that person established that fact. He point blank fails to explain how come, if Bashir’s name wasn’t on the passenger list earlier, it was thereafter established that he was on board the plane after two hours, but not while it was on the runway shortly before the court recess. But most importantly, Apleni omits the fact that the call sign SUDAN1 is protocol code for the verified fact that Sudan’s president is on board.
What could have been simpler than to simply ask Air Command Post and/or the Joint Operations centre whether Bashir was on board? By Apleni’s own version (rather ironically), Waterkloof is used for its ‘strictly controlled’ air space. Indeed the good men and women controlling our military airspace are exceptionally good at what they do. They know exactly which planes are in their space, the nature of the flight and its destination and route. In the case of a diplomatic flight carrying a head of state, you can bet your last R2 that they’ll know, and they’ll know before it departs. It’s their job and they do it damned well. This is probably why Apleni shies away from venturing down the road of air space safety and the controls our military keeps over who gets into our airspace, especially from our own air bases, because that would rob him of the convenience of vagueness.
Apleni’s attempt at explaining the State’s headache away is at best a poorly constructed half-truth and at worst an act of defrauding the courts and the public. We don’t need half-baked versions of the story from someone trying to save the skins of his political masters. We need actual officials testifying and being cross-examined to get to the truth. It was done with great commitment by this same government when it attempted to cast their own shenanigans in Guptagate onto innocent people. Unfortunately, it seems, Guptagate has taught government a stinging lesson – revealing all the papers and collecting all the testimonies actually backfires. Much better, then, to stay vague and hope the entire escap(ad)e blows over. DM
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Pikkie Greeff joined SANDF in 1993 as law officer in prosecution and later Defence counsel. He was admitted as advocate to High Court in 1997. He started at SA National Defence Union (SANDU) in 1999 as chief legal advisor, and was appointed as SANDU National Secretary in 2008.
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