The full bench of the high court in Pretoria has reaffirmed South Africa’s obligations under international and domestic law‚ and made it clear that the state’s failure to arrest the president of Sudan Omar al-Bashir was inconsistent with the Constitution.
The Southern Africa Litigation Centre made this comment after the full bench on Wednesday dismissed with costs the state’s application for leave to appeal against its judgment in June.
The centre had sought the execution of the warrant of arrest for Al-Bashir‚ who was in the country for the African Union Summit in June.
The International Criminal Court (ICC) issued a warrant for his arrest in 2009 and 2010 on charges of war crimes allegedly committed in his country in 2003. South Africa is a signatory of the Rome Statute and has enacted a local law adopting the Statute‚ which means it was bound to execute the warrant of arrest.
After the court had ordered on Sunday‚ June 14 that Al-Bashir be prevented from leaving South Africa pending the hearing of the application by the centre‚ the court was later informed that the Sudanese president had left the country the following day‚ June 15.
In a judgment on June 24‚ the full bench said a democratic state based on the rule of law could not function if the government ignored its constitutional obligations and failed to abide by court orders.
The centre’s executive director Kaajal Ramjathan-Keogh said on Wednesday that the centre stood by the high court judgment as it was a strong contribution to the fight against impunity for egregious crimes.
She said the centre would continue in its quest to ensure that South Africa did not become a safe haven for suspected war criminals.
The government had argued in court that the matter raised important questions of public international law arising from the local Act and the Immunities Act.
Government’s case was that South Africa’s obligation to arrest Al-Bashir in terms of the local Act took a back seat when a serving head of state‚ who was a known fugitive of the ICC‚ was in the country.
The full bench disagreed with the government’s contention that the appeal would have a reasonable prospect of success.
“We are not of that opinion‚ and for the reasons stated in our judgment‚ President Bashir enjoyed no immunity from arrest or from prosecution under customary international law as a serving head of state.”
Department of Justice spokesman Mthunzi Mhaga said government would study the judgment and consider whether it should petition the Supreme Court of Appeal to hear the matter.
Litigation Centre lauds court for standing by its Al-Bashir decision
The Southern Africa Litigation Centre made this comment after the full bench on Wednesday dismissed with costs the state’s application for leave to appeal against its judgment in June.
The centre had sought the execution of the warrant of arrest for Al-Bashir‚ who was in the country for the African Union Summit in June.
The International Criminal Court (ICC) issued a warrant for his arrest in 2009 and 2010 on charges of war crimes allegedly committed in his country in 2003. South Africa is a signatory of the Rome Statute and has enacted a local law adopting the Statute‚ which means it was bound to execute the warrant of arrest.
After the court had ordered on Sunday‚ June 14 that Al-Bashir be prevented from leaving South Africa pending the hearing of the application by the centre‚ the court was later informed that the Sudanese president had left the country the following day‚ June 15.
In a judgment on June 24‚ the full bench said a democratic state based on the rule of law could not function if the government ignored its constitutional obligations and failed to abide by court orders.
The centre’s executive director Kaajal Ramjathan-Keogh said on Wednesday that the centre stood by the high court judgment as it was a strong contribution to the fight against impunity for egregious crimes.
She said the centre would continue in its quest to ensure that South Africa did not become a safe haven for suspected war criminals.
The government had argued in court that the matter raised important questions of public international law arising from the local Act and the Immunities Act.
Government’s case was that South Africa’s obligation to arrest Al-Bashir in terms of the local Act took a back seat when a serving head of state‚ who was a known fugitive of the ICC‚ was in the country.
The full bench disagreed with the government’s contention that the appeal would have a reasonable prospect of success.
“We are not of that opinion‚ and for the reasons stated in our judgment‚ President Bashir enjoyed no immunity from arrest or from prosecution under customary international law as a serving head of state.”
Department of Justice spokesman Mthunzi Mhaga said government would study the judgment and consider whether it should petition the Supreme Court of Appeal to hear the matter.
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