Govt to consider taking Al-Bashir case to Concourt

2016-03-15 14:22

Johannesburg – Government will consider taking the Omar al-Bashir matter to the Constitutional Court after the Supreme Court of Appeal ruled against it on Tuesday.

"We believe President Al-Bashir was protected by Immunities Act and under customary international law as a sitting foreign head of state,” justice department spokesperson Mthunzi Mhaga said.

“However, we will reflect on all issues raised by the SCA judges and determine if we can escalate the matter to the Constitutional Court as final arbiter."

The Supreme Court of Appeal dismissed the state’s appeal against a high court ruling that its failure to arrest the Sudanese president was inconsistent with its constitutional duties.

"The decision by the South African government not the arrest Al-Bashir was inconsistent with South African law. Therefore the application is dismissed," Judge Carole Lewis said on Tuesday. 

When Al-Bashir entered South Africa last June for an African Union summit, the SA Litigation Centre approached the high court for an order that government enforce an International Criminal Court (ICC) arrest warrant against him.

On June 15, the High Court in Pretoria ordered the government to arrest Al-Bashir and said its failure to do so would be unconstitutional. Despite this, he was allowed to leave the country.

South Africa is a signatory to the ICC's Rome Statute, which sets out the crimes falling within the court's jurisdiction and the procedures and the mechanisms for states to co-operate with the court.

The ICC had two outstanding warrants for Al-Bashir, issued in 2009 and 2010. It wants him to stand trial on allegations of crimes against humanity, genocide, and war crimes committed in Sudan’s western province of Darfur.

The ANC said it noted the SCA's decision.

"Government has indicated that they will study the judgment before committing themselves to any further action," national spokesperson Zizi Kodwa said in a statement.

"Accordingly, the ANC awaits government’s decision on this matter."

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