Al-Bashir matter: Heads could roll soon

2016-10-23 06:00
Omar Hassanal-Bashir

Omar Hassanal-Bashir

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Ministers and government officials who acted in contempt of court by allowing genocide-accused Sudanese President Omar al-Bashir to leave South Africa – despite a court order blocking his departure – will be prosecuted once police have completed a criminal investigation.

This is according to National Prosecuting Authority (NPA) spokesperson Luvuyo Mfaku following Cabinet’s decision on Wednesday to withdraw government’s appeal before the Constitutional Court, in which it had sought to reverse the rulings by both the Pretoria High Court and the Supreme Court of Appeal (SCA) that ministers and officials acted “unlawfully” in their handling of the Al-Bashir matter.

“The mandate of the NPA is to conduct criminal prosecution on behalf of the state. The investigation of crime is the sole mandate of the police,” said Mfaku, adding that the NPA would await “a docket from the police on the matter”.

Justice and constitutional development spokesperson Mthunzi Mhaga said government was “alive to the high court judgment and aware of the issues raised therein”.

The withdrawal of the court appeal, yet to be made final, was based on government initiating a process to withdraw from the Rome Statute, meaning that South Africa would no longer be obligated to act on the orders of the International Criminal Court (ICC).

Many government departments were implicated in facilitating Al-Bashir’s departure and all of them could potentially face criminal contempt charges.

This included the police as well as officials from the departments of justice and constitutional development, international relations and cooperation and home affairs.

A key part of the high court judgment, later confirmed by the SCA, had been that the national director of public prosecutions was invited “to consider whether criminal proceedings are appropriate”.

The SA Litigation Centre, that initially took the matter to court, yesterday described the NPA’s posture as “interesting”.

Criminal justice lawyer Angela Mudukuti told City Press that the high court was explicit that “the NPA should be invited to consider criminal contempt”.

Mudukuti said the decision to withdraw from the ICC was also questionable because there were “doubts as to whether it was done in compliance with the Constitution and South African domestic law”.

“But, regardless of that, the high court invited the NPA to consider contempt of court charges and that still stands. The law as it stood at the time was violated, so they are in for contempt of court charges, criminal and civil.

“However, as you know, only the NPA can handle criminal matters, so the question would be whether or not they [will] do it and how we can push for that as civil society organisations,” said Mudukuti.

“The state cannot unilaterally withdraw without consulting other parties and the court. So far, we have received no official documentation.”

Mudukuti said the basis for withdrawing the court appeal was that governments were withdrawing from the Rome Statute.

“Even if we can say the withdrawal for the ICC is legally completed, which we doubt, it is only effective one year after it has been confirmed by the UN, and so all the obligations in the interim remain.”

The Helen Suzman Foundation said it would await the official notice from the Constitutional Court indicating that the case would not proceed.

“The applicant is government, so if they withdraw, we will not be in court. Then the SCA ruling stands, which means government acted unlawfully,” said the foundation’s executive director, Francis Antonie.

“They should be charged in terms of assisting the evasion of justice. Clearly, the law was broken. The ball is in the NPA’s court,” he said.

Justice and Correctional Services Minister Michael Masutha said:

“This act and the Rome Statute compel South Africa to arrest people who may enjoy diplomatic immunity under customary international law, but who are wanted by the ICC for genocide, crimes against humanity and war crimes and to surrender such people to the ICC.

"South Africa has to do so, even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries,” Masutha said.

Read more on:    npa  |  omar al-bashir  |  constitutional court

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