Sudanese President Omar al-Bashir left South Africa without going through immigration, the director general of the home affairs department, Mkuseli Apleni, told the Pretoria high court on Thursday.
It is a criminal offence, punishable by up to two years in prison, to leave South Africa without completing immigration procedures.
The National Prosecuting Authority could not immediately say whether it intended to pursue such charges against al-Bashir.
Apleni said the police and defence force had facilitated the departure of al-Bashir’s delegation from Waterkloof Air Force Base outside Pretoria, that immigration officials had been on hand and that two representatives of al-Bashir’s delegation had presented passports for inspection before their jet took off.
“President Bashir departed from the republic without his passport being presented to the immigration officer,” Apleni said.
By Thursday, Cabinet ministers had contradicted one another, misquoted an African Union report, and disputed both the finding of the high court in Pretoria and a decision by the International Criminal Court (ICC).
In a debate in Parliament on Tuesday, the small business development minister, Lindiwe Zulu, said there was no chance that South Africa would take a serving president into custody and that President Jacob Zuma and his Cabinet had decided as much.
“We are proud members of the African National Congress, and the decisions that were taken were a collective decision of the Cabinet of President Jacob Zuma …” Zulu said at the start of her prepared speech, which she ended with an apparently unscripted addition: “Honourable speaker, can these members really think we are going to arrest a head of state? They must think again.”
At a briefing on Thursday, however, the minister in the presidency, Jeff Radebe, held that there had been no collective decision to allow al-Bashir to leave the country despite a court order to the contrary. He could not immediately explain the contradiction.
In the same parliamentary debate, the deputy minister in the presidency, Obed Bapela, pointed the house to a 2009 report of an AU panel on Darfur chaired by former president Thabo Mbeki, which Bapela said “is AU policy, which, by implication, binds all Africa.”
Reason not to co-operate
While Bapela cited the report as a reason not to co-operate with the ICC, the Mbeki panel had urged that justice for Darfur must be meted out “in a credible, comprehensive, coherent and timely manner”, and said while it should preferably be done by Sudanese or regionalised courts, the ICC should decide whether such institutions were credible.
“Should Sudan make genuine efforts to address the crimes in Darfur, the judges of the ICC would be required to evaluate those steps to consider whether they meet the requirements of Article 17 [of the Rome Statute, which gives preference to national courts unless the state in question cannot or will not prosecute]. The final determination of this issue, however, is for the judges of the ICC alone,” the Mbeki panel said.
On Thursday, the Cabinet issued a statement on its meeting the previous day, saying that arresting al-Bashir would “breach its existing treaty obligations with the AU.”
But on Wednesday three high court judges in Pretoria had concurred that not only did al-Bashir not have immunity in South Africa, Parliament had also decided not to grant blanket immunity to those attending AU meetings in this country, and this decision by Parliament could not be undone by a minister or the Cabinet.
The Cabinet also held that the ICC had failed to consult properly with South Africa on al-Bashir’s arrest, and that the court had not acted in good faith in its dealings on the matter.
But in a June 13 decision of an ICC judge, the court said it had consulted with South Africa’s ambassador to the Netherlands, Bruce Koloane, and had “repeatedly made clear, in un-equivocal terms, that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir as soon as on its territory [sic]”.