Dismissing Govt’s Bashir Appeal, Supreme Court Refers to “Disgraceful Conduct”

BLOEMFONTEIN – The Supreme Court of Appeal of South Africa has dismissed the government’s appeal against a Gauteng High Court ruling that Sudanese President Omar Al Bashir should not have been allowed to leave South Africa in June 2015 and should have been arrested.

Bashir, who is wanted by the International Criminal Court to stand trial pursuant to two warrants for, among other things, genocide, was in South Africa to attend an African Union summit.

The Bloemfontein court on Tuesday dismissed the appeal by the government of a High Court ruling that found “the conduct of of the government in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th Assembly of the African Union, was inconsistent with South Africa‘s obligations in terms of the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful”.

The Bloemfontein court said that the government took no steps to arrest Bashir at the time. Indeed, it said, the government adopted, and continues to adopt, the stance that it was obliged not to do so as Bashir enjoyed immunity from such arrest.

On Sunday 14 June last year, the South African Litigation Centre brought an urgent application, saying that the failure to arrest Bashir was in breach of the Constitution and to compel the government to cause Bashir to be arrested and surrendered to the ICC to stand trial.

The government opposed the urgent application, and sought and obtained a postponement until 11.30 am on Monday, 15 June, to enable affidavits to be prepared. The court granted the application but forbade Bashir to leave the country. At the court hearing at 1 pm on Monday 16 June the government’s counsel reportedly said he understood Bashir was still in the country, and at 3 pm the court ordered that government should carry out the arrest. Government’s counsel apparently then said Bashir had left the country at 11.30 am from Waterkloof Air Base.

“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. Whichever is the true explanation, a matter no doubt being investigated by the appropriate authorities, it was disgraceful conduct,” according to the ruling by Justice MJD Wallis.

The government could appeal the SCA’s ruling to the Constitutional Court.