NPA declined to issue a warrant of arrest for Indian Prime Minister Narendra Modi, citing “inadequate evidence to sustain a successful prosecution”. Picture: Reuters/Adnan Abidi

Durban - South Africa's National Prosecuting Authority has on Friday, declined to issue a warrant of arrest for Indian Prime Minister Narendra Modi, citing “inadequate evidence to sustain a successful prosecution”.

The prosecuting authority had received representations from the Muslim Lawyers Association and the South African Kashmiri Action Group on June 22, represented by Johannesburg lawyer Yousha Tayob, asking for Modi’s arrest on arrival in the country. They cited his involvement, as head of state of India, in the Indian-controlled Kashmiri and Jammu region violent unrest since July 2016.

They claimed Modi was guilty of “war crimes and crimes against humanity”.

The complainants based their complaint on a June 2018 report by the United Nations Human Rights Commission on Kashmir region which cited several examples of violence involving Indian security services.

In a statement released on Friday, NPA spokesperson Luvuyo Mfaku said: “The request was…investigated by the Directorate for Priority Crime Investigation (Hawks). The South African authorities engaged the Indian authorities in line with our legal obligations. 

“After evaluating the evidential material, information received and the applicable law, the NPA decided that there is presently inadequate evidence to sustain a successful prosecution and to support an application for a warrant of arrest.  The NPA thus declines to obtain a warrant of arrest for the Prime Minister of India”.  

Modi is to be in South Africa from 25-27 July for the 10th Brics (Brazil, Russia, India, China and South Africa) Summit being held in Johannesburg, along of heads of state from other member countries.

Tayob said while his clients understood there was a slim chance that the South African authorities would seriously consider arresting a head of state, they were still “appealing to the moral conscience” of the South African government while raising the profile of the decades old Kashmiri conflict.

“South Africa’s economic issues are more important than its moral conscience. I believe we gave the NPA sufficient evidence but they are saying we have not. We will now submit further evidence,” he said.

In the Muslim Lawyers Association and the South African Kashmiri Action Group submission to the NPA, they said the UN report released on 14 June 2018 showed that Indian security forces “used excessive force that led to unlawful killings and a very high number of injuries” during protests between July 2016 and March 2018 with an estimated “130 to 145 civilians killed”.

The submission said the UN report also found there was a “lack of access to justice”; minors were being detained; communication was being blocked by government; curfews implemented; sexual assaults by Indian military were being reported and not investigated and medical services were being hampered due to the unrest.

“The complainants are in possession of witness statements which will be provided confidentially to the SAPS as the witnesses fear reprisals and seek protection,” said the submission.

Senior deputy director of public prosecutions in the Priority Crimes Litigation Unit, Advocate Chris Macadam, told Tayob in a letter on July 9, that in studying the UN report, they would need to ascertain if Modi had contravened the International Criminal Court Act, the Geneva Conventions Act and the Prevention and Combating of Torture of Persons Act.

“It is presumed that the timing of this request coincides with the upcoming BRICS summit and the proposed visit of the Prime Minister of India," said Macadam.

“Since your request specifically focuses on the Prime Minister of India it will have to be investigated as to whether the principles of command responsibility apply to him in respect of any contraventions which may be established.”

African News Agency (ANA)