Government has been denied leave to appeal in the case involving Sudanese president Omar al-Bashir. Effectively, this means an earlier court ruling stands and that the South African government had a duty as a signatory of the Rome Statute to arrest al-Bashir, who is wanted by the International Criminal Court (ICC) on charges of war crimes.
Al-Bashir was in the country attending an African Union Summit. He has been wanted on charges of genocide and other war crimes since 2009. In July, the Southern African Litigation Centre (SALC) took government to court in an attempt to force the state to arrest al-Bashir. The high court in Pretoria issued an interim order barring al-Bashir from leaving the country pending the full hearing of the matter. The following day, on July 15, the court ordered al-Bashir’s arrest. But on that same day the court learned that he had left the country in spite of the interim order.
The court called government’s defiance of the court order unconstitutional. Government filed an application for leave to appeal that judgment on August 14.
At the heart of government’s case was the argument that the court had misdirected itself; 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.
On Wednesday, this application for leave to appeal was dismissed as the matter was now moot and had no prospects of success.
In a statement on Wednesday, the SALC said the court had “effectively reaffirmed South Africa’s obligations under international and domestic law and made it clear that the government’s failure to arrest President al-Bashir was unconstitutional and therefore invalid”.
SALC executive director Kaajal Ramjathan-Keogh said: “We stand by the high court judgment as it is a strong contribution to the fight against impunity for egregious crimes. The state is free to petition the Supreme Court of Appeal directly and we will continue in our quest to ensure that South Africa does not become a safe haven for suspected war criminals.”
DA MP James Selfe said the court’s decision was a “damning indictment” of government’s decision to let al Bashir leave the country at all.
“Indeed, the South African government should have never invited President al-Bashir to our shores, much less facilitate his state-sanctioned escape, knowing full well its obligations to international and domestic law.
“This should serve as a warning to President Zuma and his cohorts in Cabinet that the Sudanese president should not be invited back to South Africa as he announced yesterday at a briefing on South African foreign policy,” Selfe said.
Zuma said on Tuesday at the foreign policy briefing: “The South African government is aware of the order made by the International Criminal Court … requesting submissions from South Africa in relation to the case of President al-Bashir. We are currently studying the order. We will then make a determination as to the next course of action, if any.”
Selfe said: “These comments seem to indicate the ANC government may not comply with the request, which shows a distinct lack of regard for their legal obligation to the International Criminal Court. This episode will forever represent President Zuma and the ANC’s abandonment of constitutionalism and moral leadership, where the president and his government conspired to bow to the whims of a wanted warlord and human rights violator.”