Sundanese President Omar al-Bashir. File photo: Tiksa Negeri

Pretoria - Three high court judges still have unanswered questions on the departure of elusive Sudanese President Omar al-Bashir, despite the existence of a court order barring him from leaving South Africa.

“Perhaps the questions that can be asked about the apparent non-compliance with this court’s explicit order of Sunday, June 14 are - how was it possible that President al-Bashir with his whole entourage would travel from Sandton to Waterkloof Air Base without any of the respondents’ (government officials) knowledge?” Judge President Dunstan Mlambo questioned on behalf of a full bench that included Judge Aubrey Ledwaba and Judge Hans Fabricius.

“How was it possible that the Sudanese plane would take off from the Waterkloof Air Base without the respondents knowing whether President al-Bashir was on board or not? How would the plane land in Sudan by late afternoon, if it had not departed at about noon? The answers suggest themselves,” he said.

The State is scheduled to file the responding affidavit to the judges’ questions by Thursday.

Mlambo, however, had words of caution for government officials: “The State is founded on the supremacy of the Constitution and the rule of law. They are also aware of the constitutional enjoinder that international agreements bind the Republic, especially those that have been ratified”.

“They (State officials) must also be aware of section 65 of the Constitution which says the judicial authority of the Republic is vested in the courts. The courts are independent and subject only to the Constitution and the law. No person or organ of State may interfere with the functions of the courts,” he added.

Mlambo said a decision of the courts was binding to all people and organs of the State.

“At this stage, on a common sense approach, there are clear indications that the order of June 14 was not complied with. It is for this reason we state that a democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations and fails to abide by court orders,” said Mlambo solemnly.

“If the State, an organ of State or State official does not abide by court orders, the democratic edifice will crumble stone by stone until it collapses and chaos ensues,” he said.

Mlambo said International Relations Minister Maite Nkoana-Mashabane went beyond her mandate when she guaranteed diplomatic immunity for African Union summit delegates, including Bashir.

“The Immunities Act, at its highest, confers discretion on the minister to grant immunities and privileges on persons of her choosing, but she must exercise that discretion lawfully, in accordance with South Africa’s domestic and international law obligations,” Mlambo pointed out. “She cannot lawfully exercise the discretion where the effect will be to prevent the arrest and surrender of a person, subject to an ICC (International Criminal Court) warrant and request for surrender.”

The judge said no agreement reached with the African Union could trump South Africa’s obligations under the Rome Statue.

“The Rome Statute gives effect to international human rights law and enables the prosecution of customary international law crimes. As such, its provisions enjoy pre-eminence in our constitutional regime. Moreover, it has been domestically enacted,” said Mlambo.

“By contrast, the OAU (Organisation of African Unity) convention has not been domestically enacted. Despite the Immunities Act having been passed after the adoption of the OAU convention, it was not ratified. That represents a clear choice by the legislature not to confer blanket immunity on AU bodies, meetings and officials that attend them.”

In a government notice published June 5, Nkoana-Mashabane, signed an agreement granting diplomatic immunity to delegates participating at the African Union summits and events. Mlambo said immunity on Bashir was waived by the ICC.

“The June agreement doesn’t confer immunity for heads of state. President Bashir could thus only claim head of state immunity based on customary international law. However, the Rome Statute expressly provides that heads of state do not enjoy immunity under its terms,” said Mlambo.

This means the immunity which Bashir might have enjoyed as a head of state becomes waived in respect of the crimes he faces under the Rome Statute.

The high court has requested the National Director of Public Prosecutions (NDPP) to consider initiating criminal charges over al-Bashir’s controversial departure.

“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,” said Mlambo. “For this reason, we find it prudent to invite the national director of public prosecutions to consider whether criminal proceedings are appropriate.”

Mlambo said that last week the court wanted an explanation on why Bashir was allowed to leave South Africa on June 15, despite an interim court order barring him from departure issued by Judge Fabricius on June 14.

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 respectively.

As a member of the ICC, South Africa is obliged to arrest him and surrender him to the ICC.

The application before the High Court in Pretoria was brought by an NGO, the Southern Africa Litigation Centre, which has sought to compel the South African government to fulfil its obligations to the ICC.

Bashir attended the 25th African Union Summit held in Johannesburg. He was congratulated by AU Commission chairperson Nkosazana Dlamini-Zuma on June 14 for his election victory at the glamorous heads of state event chaired by Zimbabwean President Robert Mugabe, chairperson of the continental bloc.

Last week, President Jacob Zuma announced the appointment of Advocate Shaun Abrahams as the new NDPP.

ANA