Pretoria – There were knowing sniggers from the public gallery in the High Court in Pretoria on Monday, when the government’s lawyer stood up and explained to a full bench that fugitive from justice, Sudanese President Omar al-Bashir, had left the country.
Rumours and tweets that the man wanted for war crimes in Darfur had flown out of Waterkloof Air Force Base earlier on Monday had been circulating among the journalists packed into the public gallery of court 4F all morning.
Despite this, William Mokhari had maintained repeatedly, to questions from Judge President Dunstan Mlambo, that as far as he knew, al-Bashir was still in Johannesburg for a two-day African Union summit.
He said the rumours of his departure had been sparked when al-Bashir was no longer seen in his seat at the AU summit.
“When he could not be seen on the seat that he occupied it was concluded that he had left. He could be in the hotel room, or doing shopping, or other things,” Mokhari said, to laughter from the room.
After Mlambo had handed down his order that al-Bashir be arrested, Mokhari stood up and said: “I have been informed by the government that they have reliable information that President al-Bashir has departed from the republic.”
Snorts of incredulity
This promoted the laughter and snorts of incredulity from journalists, some of whom speculated that Mokhari had known all along that al-Bashir was gone, but was merely playing for time.
The judges, particularly Hans Fabricius, who handed down the order on Sunday that al-Bashir not be allowed to leave the country until the court had dealt with the application to have him arrested, showed no emotion.
Mlambo diplomatically said this was “of concern”, and gave the government seven days to explain when, and through which port of exit, he had left the country.
“It is of concern to this court that it issues orders and that things just happen in violation of these orders,” Mlambo said.
Mokhari said the ministers of state security and in the presidency had told him the circumstances of the departure would be “fully investigated”.
Isabel Goodman, for the Southern Africa Litigation Centre (SALC), which brought the arrest application, said it appeared to be a prima facie violation of Fabricius’s order handed down on Sunday.
The bid to have al-Bashir arrested pitted South African law against its obligations in terms of international law.
The SALC argued that al-Bashir did not enjoy immunity from arrest while in South Africa.
Mlambo asked Goodman, whether, for South Africa not to regard itself bound to arrest al-Bashir, it had to “get out of the Rome Statute”.
“This is correct My Lord,” Goodman replied.
'There is a binding obligation'
“The primary starting pointing is that the statute is binding. There is a binding obligation on South Africa to arrest and surrender President al-Bashir.
“It cannot be trumped or circumvented by a notice issued on a discretionary basis by the minister [of international relations],” she said, referring to a notice in the Government Gazette earlier in June.
At issue was whether the notice, a Cabinet decision, and an agreement between South Africa and the African Union, granting diplomatic immunity to delegates attending the AU summit in Johannesburg, could trump South Africa’s Constitution and obligations under international law.
The decision on immunity was taken in terms of the Diplomatic Immunities and Privileges Act.
The Rome Statute of the International Criminal Court (ICC), to which South Africa is a signatory, however obliges South Africa to arrest al-Bashir. The court had issued two warrants for his arrest, in 2009 and 2010, in a bid to have him stand trial on charges of genocide and crimes against humanity committed in Sudan’s Darfur region.
“There is no basis put up by the respondents [government] for conferring immunity on President al-Bashir and he is subject to the jurisdiction of this court,” Goodman said.
“The state representatives are in breach of the obligation to give effect to the procedures that lead to the arrest and surrender of President al-Bashir,” Goodman said.
'Everything was done according to law'
Mokhari said the SALC had made no case that domestic law conflicted with international law.
“I will submit that the applicants (SALC) have failed to satisfy the first threshold, and that is that President al-Bashir does not enjoy immunity in terms of the domestic legal instrument that South Africa has invoked.”
South Africa and the AU commission had entered an agreement on immunity of delegates during the summit. Everything was done according to law, he said.
“What then happens to make it have a force of law, it must then be promulgated. That has happened in terms of the notice of 5 June, which refers to section 5.3 of the Diplomatic Immunities and Privileges Act. It did not go through the parliamentary process, but it went through the promulgation process.
“All delegates, including heads of state, including President al-Bashir, have been granted immunity.”