Al-Bashir appeal shows law is important to government - professor

Cape Town - Government’s appeal of the high court ruling to detain Sudanese President Omar al-Bashir is an indication that it views the law as important, a professor said on Thursday.

“If it were true that the SA government didn't care about the rule of law, then they wouldn't appeal. They would simply say that the man is gone,” University of Pretoria International Law professor Dire Tladi told News24.

“To appeal when they don’t really have to is an indication that law is important. This is a legal process and I guess they are trying to follow that process.”

The order handed down on June 15 was for the State to detain al-Bashir while he was still in South Africa for a two-day African Union summit.

Tladi was a participant at the Institute for Justice and Reconciliation's dialogue on the implications of the non-arrest of al-Bashir for the rule of law in South Africa.

Al-Bashir is wanted by the International Criminal Court (ICC) to stand trial on charges, including genocide. As South Africa is a signatory to the court’s Rome Statute, it is obliged to arrest and hand him over to the court.

Despite this, and in defiance of a court order, he was allowed to leave South Africa on June 15.

Asked whether the non-arrest would have implications for the country's rule of law, he said it depended.

"There is a legal process that is unfolding and we can only really determine that when all the legal issues have been resolved." 

'It is very complicated'

The government announced its appeal of the High Court in Pretoria’s order earlier this week.

But Tladi said people had a tendency to "make things seem simple".

“It is very complicated and there is a multi-level conflict of legal rules.”

On an international legal level, there was a conflict between obligations on South Africa to arrest and not arrest.

On Wednesday, deputy ANC secretary general Jessie Duarte said the Africa Union constitution obliged member states to support the decisions of its peace and security council, one of which was to defer, for a year, bringing charges against al-Bashir.

There was no talk of “wiping the slate clean” regarding the charges of genocide and crimes against humanity al-Bashir faced for the deaths of thousands of people in Sudan’s Darfur region.

“We are not undermining the really serious human rights issues that did take place in Darfur,” she said at the time.

Tladi said there was also a conflict between the implementation of the Rome Statute and the Diplomatic Immunities and Privileges Act, which provided protection for heads of states and participants at international conferences and meetings in the country.

International Justice project leader Kelly-Jo Bluen, at the Institute for Justice and Reconciliation, added it was too easy to flip between binary narratives where one either believed in international justice or not.

She told News24 on Thursday that the ICC wanted to pursue justice, but existed within a constrained system that very much privileged the global north at the expense of the global south.

“South Africa didn't act well in this case, but I think this is what other states are doing all the time. I am not saying that we can do the same. But there should be a narrative where all countries are viewed equally and in the same light.”

She said the worst thing that could happen was for the principle of accountability to be sacrificed.

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