A sizeable chunk of the leaders of the criminal justice sector say that when the government granted Sudanese President Omar al-Bashir immunity from arrest while he attended the African Union summit in Sandton in June this year, this should have been the end of the matter.
Instead, three judges of the Pretoria high court found that al-Bashir should have been arrested because he is wanted by the International Criminal Court (ICC) for war crimes. The ICC says al-Bashir “masterminded and implemented a plan” that resulted in the genocide of ethnic groups in Darfur. On his orders, the ICC alleges, armed forces and militia in Sudan hunted down, raped, pillaged and murdered people belonging to certain ethnic groups.
The state wants to appeal the judgment, which held that South Africa had a legal duty to hand al-Bashir over to the ICC.
The state filed an application for leave to appeal that judgment in the Supreme Court of Appeal this week.
The Southern African Litigation Centre (SALC) approached the Pretoria high court on June 14 2015, urgently asking the court to declare that government had to take steps to arrest al-Bashir and prevent him from leaving the country.
Government argued that because it had granted him immunity from arrest, this trumped its duties in terms of domestic and international law to assist the ICC in arresting the president.
A three-hour adjournment was granted to allow government to prepare oral arguments. Meanwhile, the court handed down an interim order preventing al-Bashir from leaving the country. He left regardless.
There are 12 applicants in the application for leave to appeal, including the national commissioner of police, the national director of public prosecutions, the head of the Hawks and the ministers of justice, international relations, home affairs and police.
At the heart of the state’s case is its belief that the high court made a fundamental mistake: instead of asking “whether a Cabinet resolution coupled with a ministerial notice is capable of suspending this country’s duty to arrest a head of state”, the court should have asked whether there is a duty to arrest a serving head of state under South African law at all. And, if such a duty exists, the court should have asked whether any “countervailing” duties exist, and how to resolve any potential disputes between these two duties.
Al-Bashir’s immunity was granted by ministerial notice, which gave immunity to delegates attending the AU summit.
The state says this immunity precluded the ICC’s arrest warrant.
It says SALC conceded in the high court that the state had no obligation to arrest al-Bashir if it had granted him immunity. The state says the high court did not give this fact sufficient attention.
Government says the court did not properly interpret the Implementation Act in accordance with international law. The Act’s full title is the Implementation of the Rome Statute of the International Criminal Court and it is the piece of legislation that binds South Africa to co-operate with the ICC in terms of domestic law.
“International law recognises the inviolability of serving heads of state,” the government says in its application.
The state goes further, saying the court was wrong to consider the interim order when writing its final judgment. And the court was also wrong, the state says, for “making factual assumptions based on media reports”.
It is not clear to what these media reports refer.
The state says the court should have waited for it to file its explanatory affidavit before finding that the government was guilty of non-compliance with the interim order, which sought to prevent al-Bashir’s departure.
The appeal comes in the wake of a request by Chief Justice Mogoeng Mogoeng for a meeting with President Jacob Zuma to discuss “repeated and unfounded criticism of the judiciary”. ANC secretary general Gwede Mantashe had accused the judiciary previously of seeking to “arrest the functioning of government”. In an interview with the Sowetan, Mantashe said certain Constitutional Court judgments showed that parts of the judiciary were “oppositional” to government.
In an interview with City Press, Mantashe accused the judiciary of “judicial purism” and said of the al-Bashir judgment: “Court orders like this will from time to time be disregarded.
“Can you imagine the consequences if we had kept al-Bashir here? War with Sudan. We will become a pariah state, just like with apartheid,” he told City Press.
The ANC has since said South Africa should withdraw its participation from the ICC.