Presidents Omar Al-Bashir and Jacob Zuma
The High Court in Pretoria has suggested that the National Director of Public Prosecutions (NDPP) investigate how South Africa violated a court order to prevent Sudanese President Omar al-Bashir from leaving the country, allowing him to evade arrest for alleged crimes against humanity.
Judge President Dunstan Mlambo said ignoring the principles of the rule of law would lead to democracy crumbling “stone by stone”. “A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations.”He was giving the reasons for the court’s finding on June 15 that Al-Bashir should be detained and handed over to the International Criminal Court (ICC).
Mlambo, flanked by Judge Hans Fabricius and Deputy Judge President Aubrey Ledwaba, said South Africa is one of the 31 African states to have ratified the Rome Statute, which gave rise to the ICC.
The ICC had issued warrants of arrest for Al-Bashir – one in 2009 and another in 2010 – for alleged war crimes, crimes against humanity and genocide in Sudan’s Darfur region.
Ducked arrest before
Al-Bashir had already turned down an invitation to attend President Jacob Zuma’s inauguration in 2009 when it became clear that South Africa would fulfil its obligations.
It was not the first time Al-Bashir had ducked the ICC arrest warrants. A similar situation unfolded in the Democratic Republic of Congo in 2014 when Al-Bashir attended a Common Market for East and Southern Africa conference. DRC authorities were torn between their obligations to the ICC, and their reluctance to arrest him because of immunity privileges, and Al-Bashir managed to leave safely.
Dunstan explained that ahead of the African Union (AU) summit in Sandton earlier in June, it was decided at a Cabinet meeting and later published in the Government Gazette that all delegates and staff attending the African Union Summit would enjoy immunity. It did not say heads of state.
This decision was taken in terms of a convention of the AU’s predecessor, the Organisation of African Unity, which extended immunity to delegates travelling to Pan African summits, and South Africa’s “Immunities Act”.
But he said the Rome Statute specifically excludes heads of state from immunity from prosecution, and so South Africa was consequently obliged to arrest and surrender him.
South Africa ‘obliged’
The Immunities Act at its highest confers discretion on the minister [of International Relations] to confer immunity, “but she must exercise that lawfully”, he continued. The Immunities Act and the African Union’s decision to grant immunity to delegates did not trump South Africa’s obligations under the Rome Statute.
“It gives effect to international law, and it has been domestically enacted,” said Mlambo.
He said South Africa was not the only signatory to the Rome Statute not to fulfil its obligations and he urged the ICC to take cognisance of states torn between their obligations to the Statute, and to other agreements.
He said that in spite of repeated assurances that Al-Bashir was still in South Africa during the hearing last Monday, the Sudanese president arrived home on June 15 at a time that indicated he would have taken off from South Africa at around noon, while proceedings were still under way.
He questioned why the South African government’s counsel said it needed more time to prepare answering papers when the papers they received were not voluminous; how it was possible that Al-Bashir could move to Waterkloof Air Force Base unnoticed; and for his plane to take off while the order by Fabricius the previous day was in place.
Possible criminal proceedings
“For these reasons we also invite the National Director of Public Prosecutions to consider whether criminal proceedings are appropriate,” said Mlambo.
Speaking after the judgment, Angela Mudukuti of the SA Litigation Centre, which brought the order that Al-Bashir be arrested, said the government would file its affidavit on Thursday stating how Al-Bashir was allowed to leave.
Depending on what the affidavit contained, they would decide on what steps to take. This could include contempt of court.
“We are very happy with the court’s judgment. It is a very solid judgment that speaks profoundly to the rule of law,” she said.