Cape Town - The government said on Monday morning that it had decided to appeal the recent High Court judgment relating to the controversial departure of Sudanese President Omar al-Bashir from the country.
In a statement issued on Monday, government spokesperson Phumla Williams said: “Government has decided to appeal the recent High Court (Gauteng) Judgment on the matter relating to President of Sudan Omar Al-Bashir. The reasons for the appeal will be contained in the affidavit that will be submitted within the prescribed due date.”
Last week the the High Court in Pretoria requested that the National Director of Public Prosecutions to consider initiating criminal charges over Bashir’s departure from South Africa despite a High Court order expressly prohibiting it.
“The departure of President Bashir from this country in the full awareness of the explicit order of Sunday June 14, objectively viewed, demonstrates non-compliance with that order,” Judge President Dunstan Mlambo said on behalf of a full bench of the North Gauteng High Court which included Judge Aubrey Ledwaba and Judge Hans Fabricius.
“For this reason, we find it prudent to invite the National Director of Public Prosecutions to consider whether criminal proceedings are appropriate.”
The court had demanded an explanation on why Bashir was allowed to leave South Africa on June 15, despite the interim court order barring him from departure issued by Judge Fabricius on June 14.
“It is of concern to this court that it issues orders and then things just happen in violation of those orders. Be that as it may, that is an order we issue under the circumstances,” the court said.
In its replying affidavit submitted late last week, the government claimed Sudanese officials had failed to present Bashir’s passport to the immigration officer at Waterkloof Air Force base, meaning the Sudanese head of state’s departure from South Africa had broken protocol.
According to the affidavit, the immigration officer on duty at Waterkloof had checked all the passports presented by a Sudanese delegation as it was preparing to leave the country and had not seen Bashir’s passport among those submitted.
Mlambo had said the three presiding judges were of the view that Bashir should have been detained by South African authorities.
Bashir has been indicted by the ICC for war crimes, crimes against humanity, and genocide against some of the tribes of Sudan’s western Darfur region. Two warrants of arrest were issued against him in 2009 and 2010.
As a member of the ICC, South Africa is obliged to arrest him and surrender him to the ICC.
The initial application before the High Court in Pretoria was brought by an NGO, the Southern Africa Litigation Centre, who had sought to compel the South African government to fulfill its obligations to the ICC by arresting Bashir who was in the country to attend the 25th African Union Summit held in Johannesburg.
In the wake of the furore over the Bashir incident, government said it had not knowingly defied the court order barring him from leaving the country.
“The South African government believes in the rule of law [and] that’s why we have a democratic institution. We will always observe the rule of law and the court decisions,” said Radebe.
In addition, minister in the presidency Jeff Radebe said last week that the South African Cabinet was reviewing its membership of the international tribunal.
Radebe said South Africa would appoint a team of ministers to start engaging the ICC on a dispute it intends to lodge.
The minister said South Africa had accepted an invitation prior to the African Union summit from the ICC to consult with it under article 97 of the Rome Statute. A meeting was also scheduled to take place while the summit was underway, but the ICC issued an order that article 97 consultations had been concluded and that Bashir must be arrested, without hearing government’s position on the matter.
The move prompted Radebe to accuse the ICC of acting in bad faith.
“We have challenges with the ICC and those matters will be ventilated as we go forward. Government will be appointing a group of ministers that are going to be interacting with the ICC,” he said.
Radebe said South Africa would only withdraw from the ICC “as a last resort”.