Govt to appeal Bashir court ruling

Analysis

The South African government will appeal the high court order that demanded the arrest of Sudanese President Omar al-Bashir, it announced on Monday morning.

A statement of only two lines announcing the intention added no further detail.

“Government has decided to appeal the recent High Court (Gauteng) Judgement on the matter relating to President of Sudan Omar Al-Bashir. The reasons for the appeal will be contained in the affidavit that will be submitted within the prescribed due date,” the statement read in full.

The announcement comes as little surprise. Various government officials had all but said that an appeal was on the cards as the state scrambled to deal with al-Bashir fallout last week.


“The option of an appeal is one we will consider,” deputy justice minister John Jeffery told Parliament last week, also referring to “a legal process that has far from been exhausted and that may well ultimately emerge with a different decision”.

The appeal process is likely to be a lengthy and difficult one for the state, but is only one of three different responses that have emerged. Cabinet has announced it will review South Africa’s participation in the International Criminal Court (ICC), with insiders believing that withdrawal from the court is inevitable. Meanwhile various parts of the ANC have launched attacks on the judiciary, with the likes of party secretary general Gwede Mantashe making it clear that inconvenient judgments seen to be limiting the decision-making capability of the state will simply be ignored.

The al-Bashir judgment by the high court in Pretoria was delivered by a bench of three judges, including Gauteng judge president Dunstan Mlambo. The three judges agreed with an earlier ICC judgment that there had been a clear and undeniable legal imperative for the arrest of al-Bashir. They also found that not only had the government failed to engineer immunity for al-Bashir while he was attending an African Union summit on South African soil, but that no such immunity would have been possible under the current legal dispensation.

The National Prosecuting Authority has not yet announced how it will investigate the breach of a court order to the effect that al-Bashir should have been prevented from leaving the country, nor whether al-Bashir will be charged with violating immigration law by leaving without presenting his passport to border officials.

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Phillip De Wet
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