Concern over government’s ‘deliberate misleading’ of court in al-Bashir case

The Supreme Court of Appeal’s (SCA) dismissal of the government’s appeal in the President Omar al-Bashir case is “an important affirmation of the rule of law”.

But of concern‚ the Centre for Constitutional Rights (CFCR) said on Wednesday‚ was that it appears as if the court where the initial application for an arrest warrant against the South Sudanese leader was heard “was deliberately misled”.

The SCA on Tuesday dismissed an appeal by government to set aside the North Gauteng High Court judgment which held that its decision not to detain al-Bashir was inconsistent with the Constitution.

The SCA said the conduct of government in failing to take steps to arrest and detain Al-Bashir‚ for surrender to the International Criminal Court (ICC)‚ when he arrived in South Africa was inconsistent with South Africa’s obligations in terms of the Rome Statute as well as section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002‚ and was unlawful.

CFCR legal officer Phephelaphi Dube lauded Tuesday’s decision as a victory as “Section 2 of the Constitution establishes the supremacy of the Constitution and provides that any law or conduct inconsistent with the Constitution is invalid and further that obligations imposed by the Constitution must be fulfilled”.

“There is no derogation from this obligation‚” she added.

But‚ said Dube‚ “it is a cause for concern…that it appears as if…the court was deliberately misled”.

“The SCA pointed out that President al-Bashir had been permitted to clandestinely leave the country from the Waterkloof Military Air Base‚ at the same time that the high court had received an assurance through the state’s legal representative that he was still in the country‚” she said of the high court proceedings.

Dube said “a long list of case law…reinforces the notion that legal representatives…have a duty to act honestly‚ consciously and openly”.

“They are equally obliged to not mislead the courts and further disclose material information‚” she said.

“They also have a duty to act with utmost faith towards the courts. The court does caution‚ however‚ that ‘either the representatives of government set out to mislead the court and misled counsel in giving instructions‚ or the representatives and counsel misled the court’.

“In any event‚ the court concludes that this deliberate misleading of the court constitutes ‘disgraceful conduct’.”

The case stems from al-Bashir’s arrival in the country on June 13 last year to attend the African Union Summit‚ despite there being a warrant for his arrest issued by the ICC‚ which seeks to try him for alleged war crimes.