Pretoria - It would be a mockery of justice if the South African government allowed Sudanese President Omar al-Bashir into the country again, following the controversial June visit, the Southern Africa Litigation Centre (SALC) said on Wednesday.
“I think it would be great travesty if President Al-Bashir were to come again because there is a standing order for his arrest,” said Angela Mudukuti, an international criminal justice lawyer at the SALC, the NGO that went to court when the government failed to execute an international arrest warrant against al-Bashir.
“The judge has made it clear that South Africa is obligated to arrest him. The rulings need to be taken seriously. President al-Bashir should understand that should he come to South Africa, he is likely to be arrested,” Mudukuti said.
She spoke to reporters at the High Court in Pretoria, shortly after Judge Hans Fabricius dismissed the government’s application for leave to appeal the court’s June ruling regarding al-Bashir’s departure from South Africa, despite an interim order from the same court instructing government not to allow him to leave.
Representing a full bench of High Court judges, Fabricius said the South African government’s stance on al-Bashir could not override the country’s international obligations.
He said leave to appeal may only be given when the court is of the opinion that appeal would have “a reasonable prospect of success”.
“We are not of that opinion and for the reasons stated in our judgement, President Bashir enjoyed no immunity from arrest or from prosecution under customary international as a serving head of state,” said Fabricius.
“The essence of the case made out by the applicants [government] is that South Africa’s duty to arrest President Bashir … take a back seat even when a known fugitive head of state, of the International Criminal Court is in the country.”
The judge said he disagreed with government’s stance.
“Accordingly, the application for leave to appeal is dismissed with costs, including costs for two counsel,” Fabricius ruled.
Applicants in the matter included the minister of justice, the minister and national commissioner of police, as well as the ministers of international relations and home affairs and the national director of public prosecutions and the head of the Hawks.
The SALC was cited as the respondent.
On Tuesday, President Jacob Zuma kept diplomats guessing about whether al-Bashir might visit South Africa again for the summit of the Forum for China-Africa Co-operation (Focac).
Al-Bashir was in South Africa in June for the lavish 25th African Union summit held at Sandton, Johannesburg. At that time, the High Court in Pretoria ordered the South African government to detain him under an arrest warrant issued by the International Criminal Court (ICC). The International court wants to charge al-Bashir for alleged atrocities in Darfur.
But South African authorities let him leave the country, even though the country is a member of the ICC and domestic law obliges it to comply with ICC arrest warrants. As a result, the High Court has held that the government flouted a court order.
On Tuesday, briefing numerous ambassadors and journalists on South Africa’s foreign policy, Zuma noted that questions had been raised about whether al-Bashir would be invited to the Focac summit.
He added that the government was aware of the order made by the ICC on September 4, requesting submissions from the South African government to be considered by the Hague-based tribunal in ruling whether South Africa had flouted the instructions of the ICC in failing to arrest al-Bashir.
It gave Pretoria until October 5 to submit its arguments in writing.
The ICC said in its order that if it found South Africa – as a member of the ICC – had disobeyed its obligations to the court, the ICC might refer it to the UN Security Council for further action.
The Security Council could, in theory, order sanctions against South Africa. However, it has so far never taken such concrete action against the few member states of the ICC, which have permitted al-Bashir to visit their countries freely.
Zuma said the government was currently studying the ICC order.
“It should be remembered that Sudan is a member of Focac. As such, it is expected that the Sudanese Government will participate in Focac.”
However, it was significant that Zuma said “the Sudanese Government” – and not specifically President al-Bashir – would participate in Focac. Al-Bashir could therefore send his deputy to represent him.
South Africa will host the summit in December.
The Democratic Alliance, which had sought to have Zuma impeached over the al-Bashir controversy, on Wednesday welcomed the high court ruling as a victory for the rule of law.
“The court’s decision to dismiss, with costs, the government’s baseless bid to appeal the judgement on the al-Bashir escape is a damning indictment of the government’s deliberate decision to let al-Bashir leave our country in the first place,” said the chairman of the DA’s federal executive, James Selfe.
“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.”
Selfe added that the ruling should serve as a warning to Zuma not to allow his Sudanese counterpart back into the country.
“This should serve as a warning to President Zuma and his cohort 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.”
ANA