Government leaders might have to face serious consequences should they accept the Supreme Court of Appeal’s ruling on South Africa’s failure to arrest Sudanese President Omar al Bashir last year.
Executive director of the Institute for Security Studies, Anton du Plessis, said government has the option of appealing to the Constitutional Court and continuing its line of argument that it had gazetted a provision granting all heads of state diplomatic immunity. Moving forward, South Africa might also claim it had competing obligations, saying that it is acting in compliance with AU resolutions that call on African states not to cooperate with the International Criminal Court (ICC) in the arrest and detention of Bashir.
The Southern African Litigation Centre, which brought the litigation, argued that it was not in the interest of justice to grant diplomatic immunity to someone wanted for war crimes and crimes against humanity.
The AU has resolved that sitting heads of state could not stand trial at the ICC, but South Africa, as a signatory to the Rome Statute, was obliged to arrest al Bashir.
Al Bashir was attending an AU summit in Johannesburg when the government failed to comply with a high court interdict to detain him. Al Bashir was, however, instead allowed to leave the country.
Du Plessis said government could also say that it would comply with the SCA ruling because it was satisfied that the legal uncertainty around the case had been settled. This would, however, mean “sacrificing” officials involved in letting Bashir leave the country.
But this is unlikely because the government made a public statement following a cabinet meeting acknowledging that SA decided not to arrest Bashir and to let him leave the country, Du Plessis said. Small business development minister Lindiwe Zulu told parliament in June that the decision was a “collective cabinet decision”.
“If a commission of inquiry were to find someone responsible, this could result in them being charged domestically with defeating the ends of justice, and possibly even perjury for lying to the High Court,” he said.
Du Plessis said if the decision was minuted in a cabinet meeting where Zuma said Al Bashir should be free to go, it could be grounds for another impeachment motion. “This is not like Nkandla or anything else, and there are no questions like that of the Public Protector’s legal standing. The SCA said the government intentionally acted unlawfully. If this could be brought back to Zuma himself, it will be an issue for him,” he said.
It was also unlawful for government to have ignored a high court interdict that ruled Al Bashir should not be let out of the country pending the conclusion of the application to compel government to arrest him.
“This is not just an ordinary judgement, this is a landmark judgement for international criminal justice. If we were really smart, we would use this as a way to further reclaim legitimacy rather than losing it,” he said.
The justice department’s Mthunzi Mhaga said government would study the judgement before making comment.
Amnesty International Research and Advocacy Director for Africa Netsanet Belay said in a statement that the appeal court’s ruling “upholds the rule of law and reinforces the country’s progressive laws aimed at ending impunity for genocide, war crimes and crimes against humanity”.
He said, however, that it was a “stinging rebuke to the government” for failing to abide by its own laws and arrest Bashir in order to surrender him to the ICC.
The ICC issued two arrest warrants against Bashir in 2009 and 2010 respectively. He faces seven counts of war crimes and crimes against humanity as well as three counts of genocide.