NDPP mulling over Al-Bashir judgment

Pretoria - The National Director of Public Prosecutions has yet to determine what steps to take following the court's recommendation that it investigate the controversy around Sudanese President Omar al-Bashir.

The High Court in Pretoria has invited the National Prosecuting Authority to investigate whether criminal proceedings are appropriate for government officials who allowed Al-Bashir to leave the country despite a court order barring him from doing so.

"We will have to get the record and study it accordingly in line with our mandate," NDPP spokesperson Luvuyo Mfaka told News24.

Arrest warrant

Al-Bashir is wanted for crimes against humanity relating to alleged war crimes and genocide in Sudan's Darfur region.

He visited South Africa for the African Union Summit on Saturday, June 13 and on the Sunday, June 14, the court heard an urgent application by the SA Litigation Centre (SALC) that South Africa was compelled to arrest him because it is a party to the Rome Statute.

Government opposed the application but said it was not ready to argue the case and so Judge Hans Fabricius allowed a postponement to Monday.

To ensure that Al-Bashir did not leave until the court made a finding, SALC obtained an order that all points of entry and exit in South Africa not allow his departure.

However, last Monday Al-Bashir managed to leave the country. According to Netwerk24, he left from Waterkloof Airforce Base before the three judges hearing the matter ruled that he should be detained for handover to the ICC.

‘Stone by stone’

Speaking in the High Court in Pretoria on Wednesday, Judge President Dunstan Mlambo said ignoring the principles of the rule of law would lead to democracy crumbling ''stone by stone''.

"A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations."

He was giving the reasons for the court's finding on June 15 that Al-Bashir should be detained and handed over to the International Criminal Court (ICC).

Mlambo, flanked by Judge Hans Fabricius and Deputy Judge President Aubrey Ledwaba, said South Africa is one of the 31 African states to have ratified the Rome Statute, which gave rise to the ICC.

The ICC had issued warrants of arrest for Al-Bashir - one in 2009 and another in 2010.

Al-Bashir had already turned down an invitation to attend President Jacob Zuma's inauguration in 2009 when it became clear that South Africa would fulfil its obligations.

Ducked previous arrest attempts

It was not the first time he had ducked the ICC arrest warrants. A similar situation unfolded in the Democratic Republic of Congo in 2014 when Al-Bashir attended a Common Market for East and Southern Africa conference. DRC authorities were torn between their obligations to the ICC, and their reluctance to arrest him because of immunity privileges, and Al-Bashir managed to leave safely.

Dunstan explained that ahead of the African Union (AU) summit in Sandton earlier in June, it was decided at a Cabinet meeting and later published in the Government Gazette that all delegates and staff attending the African Union Summit would enjoy immunity. It did not say heads of state.

This decision was taken in terms of a convention of the AU's predecessor, the Organisation of African Unity, which extended immunity to delegates travelling to Pan African summits, and South Africa's ''Immunities Act''.

But he said the Rome Statute specifically excludes heads of state from immunity from prosecution, and so South Africa was consequently obliged to arrest and surrender him.

The Immunities Act at its highest confers discretion on the minister [of International Relations] to confer immunity, ''but she must exercise that lawfully", he continued. The Immunities Act and the African Union's decision to grant immunity to delegates did not trump South Africa's obligations under the Rome Statute.

''It gives effect to international law, and it has been domestically enacted,'' said Mlambo.

States torn between laws

He said South Africa was not the only signatory to the Rome Statute not to fulfil its obligations and he urged the ICC to take cognisance of states torn between their obligations to the Statute, and to other agreements.

He said that in spite of repeated assurances that Al-Bashir was still in South Africa during the hearing last Monday, the Sudanese president arrived home on June 15 at a time that indicated he would have taken off from South Africa at around noon, while proceedings were still under way.

He questioned why the South African government's counsel said it needed more time to prepare answering papers when the papers they received were not voluminous; how it was possible that Al-Bashir could move to Waterkloof Air Force Base unnoticed; and for his plane to take off while the order by Fabricius the previous day was in place.

''For these reasons, we also invite the National Director of Public Prosecutions to consider whether criminal proceedings are appropriate,'' said Mlambo.

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