Judge: Al-Bashir court order was violated - As it happened

2015-06-24 10:58

Judge President Dunstan Mlambo has said that Sudan President Omar al-Bashir’s departure from South Africa just over a week ago was a clear violation of the court order handed down by the High Court.

Omar al-Bashir and Robert Mugabe

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Last Updated at 21:12
24 Jun 13:39

Judge President Dunstan Mlambo on Tuesday read out the High Court's reasons for ruling that Sudan President Omar al-Bashir’s departure from South Africa was unconstitutional.

Among other things, the judge president said the court order handed down by Judge Hans Fabricius on June 14 barring al-Bashir from leaving was clearly violated.

Read on for more from Court 6E...

24 Jun 12:35
And court is adjourned.

24 Jun 12:35

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

24 Jun 12:34
If the state does not abide, he says, the democratic edifice would collapse “stone by stone”.

24 Jun 12:33

"There are clear indications that the order of Sunday, June 15 was not complied with.

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

24 Jun 12:32

“Section 165 of the Constitution reads that judicial authority is vested in the courts, and courts must apply the law impartially without fear, favour or prejudice.

“No person or organ of state may interfere with the functioning of the courts, and they must assist the courts to ensure its dignity.”

24 Jun 12:29

24 Jun 12:29
State is founded on the rule of law and the Constitution. International agreements bind the Republic, especially those ratified by our government, Mlambo says.

24 Jun 12:27
“How was it possible that he could move to Waterkloof Airforce Base unnoticed, how could he have taken off, how could he have landed in Sudan in the late afternoon had he not departed at noon on June 15?”

24 Jun 12:26
Judge Mlambo now addressing al-Bashir's departure...

24 Jun 12:25

“Having regard to principle of separation of powers, this court would not have regard to policy decisions.

“As a court we are concerned with the integrity of the rule of law. We are obviously the wrong forum for international policy decisions. But we find it prudent to invite the ICC to take cognisance of the issues that arise in this matter.

“SA is not the only signatory of the Rome Statute to not fulfil its obligations”, says Judge Mlambo.

24 Jun 12:24
BBC South Africa Correspondent Nomsa Maseko:

24 Jun 12:23

“There was a request for his arrest but this did not happen as the DRC said as a signatory to the Rome Statute and of the AU, it was impossible to take a decision to arrest the president, especially since he had left in the morning.

“The AU had then decided that no serving head of state should be required to appear before an international tribunal during their time of office.”

24 Jun 12:22

“Al-Bashir was also in the Democratic Republic of Congo in April 2014 for a Comesa meeting.

“This case bears a ''striking resemblance" to the current one,” says Judge Mlambo.

24 Jun 12:21
Mlambo is now referring to a Comesa meeting in Kinshasa, DRC which al-Bashir attended, but was also not arrested.

24 Jun 12:17

"The Rome Statute has been domestically enacted.

"By contrast, the AU Convention has not been domesticated.

"So the AU article cannot be recognised. Decisions of the AU also cannot trump South Africa's obligations under the Rome Statute."

24 Jun 12:17

"The Immunities Act at its highest confers discretion on the Minister of International Relations to confer immunity, but she must exercise that lawfully.

"The state cannot rely on the African Union's conventions to defend itself. That cannot trump South Africa's obligations under the Rome Statute."

24 Jun 12:15
“None of the laws used as a defence supersede South Africa's obligation to Rome Statute,” Mlambo declares.

24 Jun 12:13

24 Jun 12:12

"But the ICC does not give heads of state immunity. Therefore immunity is excluded or waived under the Rome Statute," Mlambo says.

The ICC said its immunities have been implicitly waived. South Africa is consequently obligated to arrest and surrender him.

24 Jun 12:11

The agreement of June 5, 2015, published two days before the first AU meeting says:

"The agreement does not confer immunity on heads of state. Al-Bashir could only rely on international customary law."

24 Jun 12:10
“The AU summit agreement did not confer immunity to al-Bashir as head of state – it was only offered through customary law,” says Mlambo.

24 Jun 12:08
The Immunities Act does not domesticate privileges of the AU and so presidents of the African Union do not enjoy automatic immunity.

24 Jun 12:06
There is immunity for UN staff and heads of state enjoy immunity as agreed to, or as conferred on them by the Minister of International Relations.

24 Jun 12:06
He is now discussing diplomatic immunity and South Africa's ''Immunity Act".

24 Jun 12:05
Judge Mlambo reads previous judgments relating to international obligations and says these court decisions are binding on South Africa's duties in terms of international law.

24 Jun 12:05

24 Jun 12:04
Mlambo is now reading High Court & Concourt judgments which underpin South Africa's responsibilities to international law that's been domesticated.

24 Jun 12:01

24 Jun 12:00
Mlambo now turns to the South African Litigation Centre's argument for the arrest of al-Bashir...

24 Jun 11:59

24 Jun 11:58
Cabinet collectively decided that SA as the hosting country was obliged to not arrest al-Bashir in terms of the ICC warrants, in light of the Article 8 agreement.

24 Jun 11:57
In early June 2015, Cabinet asked for advice from the State Law Adviser on the ICC and the Rome Statute, and the AU Article 8 agreement.

24 Jun 11:57

Al-Bashir confirmed his attendance.

24 Jun 11:56

Minister of Department of International Relations and Co-operation published article 8 under Government Gazette 38860, on June 5, and incorporated the privileges as domestic law in South Africa.

Before the AU summit, Sudan asked that the immunities apply to Al-Bashir.

24 Jun 11:54
Mlambo is now setting out the government's argument which relied on South African law to give the Sudan president immunity for the duration of the summit.

24 Jun 11:53
Mlambo: "SA officials confirmed that they would arrest Al Bashir if he arrived in the country."

24 Jun 11:51

"Article 8 of the AU's host agreement specifically provides for privileges and immunities.

"While they exercise their functions, and during their travel, according to these privileges: they are immune from personal arrest, detention, inspection and seizure of personal baggage."

24 Jun 11:50
eNCA's Nickolaus Bauer tweets:

24 Jun 11:50
In January 2015, South Africa agreed to host an AU summit, and to facilitate it, it had to agree with AU on material and technical obligations of the meeting - called a ''host agreement''.

24 Jun 11:49
During the inauguration of Jacob Zuma as President of the Republic in 2009, Sudan President Omar al-Bashir turned down an invitation to that event.

24 Jun 11:48
The ICC wanted the requisite parties to arrest Al-Bashir when he came into their jurisdictions, he says.

24 Jun 11:48
“In 2009, the ICC issued one warrant [for Bashir’s arrest], then another in 2010, both of which related to the situation in Darfur,” Mlambo continues.

24 Jun 11:47
In terms of the implementation act, SA authorities are enjoined to co-operate with the authorities on the arrest of people alleged to have committed war crimes, crimes against humanity and genocide.

24 Jun 11:46
South Africa is a party to the statute and had been a vocal endorser of the ICC.

24 Jun 11:46

31 of the 139 states that have ratified the Rome Statute are African states.

“Domestic law is meant to deal with violations, but the ICC and the Rome Stature are meant for situations where domestic law is unable or unwilling to solve the problem.”

24 Jun 11:42
Mlambo is now going through the history of the ICC and the Rome Statute, of which South Africa is a signatory. It came into being in 1998.

24 Jun 11:41
"This is in our view is a clear violation of the order handed down by [Judge Fabricius] on Sunday afternoon."

24 Jun 11:40

24 Jun 11:40
"All these assurances were not correct, as Al-Bashir most probably left before 13:00."

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