Failure to arrest al-Bashir ‘unconstitutional’
2015-06-15 15:30
The High Court in Pretoria has ruled that the failure to detain Sudan President Omar al-Bashir was inconsistent with the Constitution. Read on to see how the ruling unfolded.
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To sum up...
The High Court
in Pretoria has ruled that the failure to detain Sudan President Omar al-Bashir
is inconsistent with the Constitution, and he must be detained pending a formal
request from the ICC.
Judge President
Dunstan Mlambo, along with Judge President Aubrey Ledwaba and Judge Hans
Fabricius, will read their reasons for the ruling into the court record next
week.
Advocate William
Mokhari, for the government, then confirmed immediately that the State had reliable
information that the Sudanese president had already left the country.
Mlambo ordered
that an affidavit be filed, indicating exactly how al-Bashir was able to leave
the country from Waterkloof Air Force base, despite the base having been served
an interim order barring him from
leaving.
Read on to see
how the ruling unfolded in Court 4F in Pretoria...
Mlambo: “It has
been clear that we were concerned as a court whether we were in jurisdiction.
Mlambo then instructs the State to explain how Al-Bashir was able to leave the country.
“We would
request an affidavit. We issue an order that an affidavit be filed for the time
he left and port of exit.”
Mokhari now
speaks: “Government now has reliable information that Omar al-Bashir has
departed.”
His departure
will be fully investigated, Mokhari adds.
"Having heard
council and having read the documents, it is declared
by the court, that the conduct of the respondent, having failed to arrest Bashir, is inconsistent with the Constitution," continues Mlambo.
"The government
must take steps to detain him, pending a formal request from the ICC.”
Mlambo: "We have
reached a decision.
"We will hand
down an order, and the reasons will
follow in a week’s time."
The Judges are back, and are now reading their summary...
The High Court
in Pretoria will ‘send word back shortly’ on its decision whether Sudan's
President Omar al-Bashir can be arrested while in South Africa, Judge President
Dunstan Mlambo told a packed courtroom.
He said he and
his colleagues, Deputy Judge President Aubrey Ledwaba, and Judge Hans Fabricius, would confer for 15 minutes and let the court know their decision.
Mokhari summarises Goodman’s stance:
“Are you saying the State is completely
powerless to protect a head of state when there are international warrants
issued?"
“Yes my lord,” she replies.
Goodman says the SALC stands by its
argument, that government can never confer immunity when it negates its
international obligations to the Rome Statute.
Goodman
says the ICC is not in the business of giving ‘opinions’. It is a decision, she
says.
Judge president Mlambo states that he will adjourn for 15 minutes.
Before he does, Goodman for the SALC gets to reply.
Mlambo: “Do you persist this matter is not
urgent?”
“We are not taking issue
that the matter is urgent," Mokhari replies.
“If Al-Bashir had come to South Africa on
holiday, would he have been arrested?” Judge Mlambo asks Mokhari, referring to Cabinet's decision to grant immunity and subsequent promulgation.
“We see no conflict between SA law and
international law,” Mokhari concludes.
"I will submit that the applicants have failed to satisfy that first threshold - that Bashir 'does not have immunity'.
"For present purposes, the application
should be dismissed and the interim application should lapse and allow
Bashir to return to his country."
“To make it have a force of law, it must be
promulgated, and that has happened in terms of the notice I have mentioned.
“It did not go through the parliamentary
process, but it was promulgated, thus giving it that force of law.
"All delegates, included heads of states, including Al-Bashir, have been granted immunity."
“An agreement concluded under the auspices
of the AU falls under that category [mentioned in the Constitution],” Mokhari
says.
The agreement was between South Africa and
the commission of the AU.
“Our submission is that indeed South Africa
has an obligation to observe international law... In doing so, the law has been
domesticated,” he says.
Mokhari now turns to the Constitution.
“It [the legislation] is all encompassing
of those invited to attend the AU summit.
“As I understand... The applicant’s
submission is that the international law obligations are domesticated by being
enacted into domestic law.”
“If heads of state are not delegates, then
what are they?”
Mokhari asks in relation to the legislation.
It is very clear, he continues, that this
is all encompassing.
“We have to then ask if the heads of states
currently in the country have immunity.”
“It is our understanding that President al-Bashir has immunity,”
Mokhari says.
“There is no inconsistency with SA law and
international law.”
"I can confirm that President al-Bashir's name was not on the list of persons to depart from Waterkloof Air Force base."
Advocate William Mokhari for the government now gets up to speak...
Goodman: “He [Bashir] is subject to the
jurisdiction of this court.”
Meanwhile, back in court:
“There is no formal agreement between South
Africa and Sudan on paper,” says Isabel Goodman.
“The Cabinet’s decision [to grant Al-Bashir
immunity] has no effect in law.”
Sudan’s State Minister for Information has
confirmed that Sudan President Omar Al-Bashir has left Johannesburg.
Yasser Youssef told Reuters that Bashir's
plane was expected to land in the Sudanese capital Khartoum at about 18:30
local time.
"Bashir
will address the crowds that will gather to meet him," he added.
“If Bashir has left, how will government
explain the blind ignorance of a High court order?” asks Goodman.
Isabel Goodman for the SALC now addressing the court...
Advocate William Mokhari has told the court
that officials at AFB Waterkloof were informed of the court order preventing
President Omar al-Bashir from leaving South Africa.
But, Waterkloof Air Force base doesn't function
as a port of entry as it doesn't have an immigration official, the court heard.
Court is continuing on the assumption that al-Bashir is still in the country.
Waterkloof Airforce base was allegedly informed about the interim court order preventing Al-Bashir from leaving the country, eNCA reports.
Advocate William Mokhari says it isn't easy to confirm if Al-Bashir is still at the AU summit in Sandton.
"He could be in his hotel, he could be shopping," he says.
Judge President Dunstan Mlambo is asking Mokhari to confirm that there is no official confirmation that President al-Bashir has left.
Mokhari replies, "Yes, there is no official confirmation yet."
Meanwhile, back in Pretoria, the High Court has reconvened.
"As we sit, I do not have official confirmation that he [al-Bashir] has left the country," says Advocate William Mokhari.
But, she has just reported that...
BBC's Southern Africa correspondent, Nomsa
Maseko, tweeter earlier:
Court arguments "could well be academic", reports eNCA's Nickolaus Bauer, if it is indeed true that the jet that left Waterkloof Airforce base was carrying the the Sudan president.
Back in court, Advocate Mokhari had told
the High Court in Pretoria before the adjournment that five ports of entry still had to confirm
receipt of Judge Hans Fabricius’s interim order, handed down on Sunday, that
Al-Bashir be prevented from leaving the country.
Al-Bashir’s jet was repositioned late last
night from OR Tambo International Airport to Waterkloof presumably for better
security control, Erika Gibson says.
No flightplans were scheduled for the Sudan president out of Waterkloof Airforce base.
Netwerk24 journalist Erika Gibson has been at Waterkloof Airforce base, and has been following the jet's 'unplanned' takeoff for the past 50 minutes.
It is still not 100% clear if Al-Bashir was on board the plane. But his plane has just left the airforce base.
