The South African Supreme Court of Appeal (SCA) on Tuesday rejected an appeal by the government against a ruling that the State had made an error in allowing Sudanese President Omar Al Bashir to leave the country, in spite of a court order barring him from doing so.
Judge Dunstan Mlambo dismissed the State’s appeal against a High Court ruling that government’s failure to arrest Al Bashir was inconsistent with its constitutional duties, stating that the country’s government was obliged to cooperate with the International Criminal Court (ICC) in The Hague by arresting Al Bashir.
Judge Mlambo stated that the case was of substantial public importance, and that it was unlawful for the government to allow him to leave the country, suggesting there was reason to believe that the South African government had committed a crime by ignoring the court order.
The unanimous SCA ruling comes in the aftermath of a High Court order on 14 June 2015 that the Sudanese President, who was attending an African Union summit in Johannesburg, should have been arrested to face genocide charges at the ICC.
The High Court issued an interim order on 14 June 2015 preventing Al Bashir from leaving the country pending the finalisation of the matter. When the Court reconvened the next day, after hearing submissions from all parties, it ordered that Al Bashir be arrested and detained for subsequent transfer to The Hague.
In spite of the order, prompted by the Southern African Litigation Centre (SALC) human rights group, it transpired that Al Bashir was allowed to escape the country, allegedly with connivance of South Africa’s controversial President Jacob Zuma.
No present effect
“No present effect can be given to the order that the government take steps to prepare to arrest President Bashir, because he is not in South Africa,” the ruling states. However Tuesday’s judgement was clear that should Al Bashir land on South African soil today, he would have to be arrested in terms of the provision of the Rome Statute.
“It is correct that no present effect can be given to the order that the government take steps to prepare to arrest President Al Bashir, because he is not in South Africa.”
Rule of Law
Reacting to Tuesday’s ruling, SALC executive director Kaajal Ramjathan-Keogh, stated: “We are thrilled with the SCA verdict as South Africa should not be treated as a safe haven for suspected perpetrators of egregious crimes.
“The South African government should seek to uphold the rule of law instead of shielding suspected war criminals and the SCA has made this clear today.” He added that as the order remains in effect, and any attempt by President Bashir to return to South Africa would prompt the SALC to seek its enforcement. “When South Africa receives invitations to host future gatherings of AU heads of state, the government will have to bear the judgment of the high court in mind.”
South African Justice Department spokesman Mthunzi Mhaga said the government is studying the ruling and has not yet decided whether it would challenge it at the Constitutional Court, the highest court in the land.
Review ICC membership
Following a Cabinet Meeting to address a political row that erupted after Al Bashir’s departure, the South African Government suggested it will review its membership of the ICC “for a number of reasons”.
On 25 June, South African Minister of Justice and Constitutional Development, Jeffrey Thamsanqa Radebe, said his government had done nothing wrong, and always obeyed the law. He also asserted ICC rules about arresting a head of state were contradictory, and accused ICC officials of failing to consult, and of not acting in good faith.
However, a number of senior South African officials still face possible criminal charges for their alleged role in allowing Al Bashir to flee the country.
Indicted
Al Bashir was indicted in 2009 by the ICC for alleged genocide and war crimes in Darfur, but some influential AU leaders, in spite of being signatories to the Rome Statute, have repeatedly voiced their lack of support for the ICC, accusing it of bias against Africa.
However, ICC prosecutor Fatou Bensouda announced on 12 December 2014 that the investigations into war crimes in the Darfur region were suspended, for lack of action by the UNSC to push for arrests. She called it a “serious indictment on this Security Council” that Al Bashir and others have shown “blatant disregard” for the Council’s resolutions of December 2013.