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Failure to arrest al-Bashir ‘unconstitutional’

Sudan President Omar al-Bashir is greeted by AU Chairperson and Zimbabwean President Robert Mugabe during a group photograph at the 25th AU Summit in Johannesburg. (Gianluigi Guercia, AFP)
Sudan President Omar al-Bashir is greeted by AU Chairperson and Zimbabwean President Robert Mugabe during a group photograph at the 25th AU Summit in Johannesburg. (Gianluigi Guercia, AFP)
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15 Jun 2015

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...

15 Jun 2015

Court adjourns.

15 Jun 2015

"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.”

15 Jun 2015

Mlambo: "We have reached a decision.

"We will hand down an order, and the reasons will follow in a week’s time."

15 Jun 2015

The Judges are back, and are now reading their summary...

15 Jun 2015

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.

15 Jun 2015

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.

15 Jun 2015

Goodman says the SALC stands by its argument, that government can never confer immunity when it negates its international obligations to the Rome Statute.

15 Jun 2015

Goodman says the ICC is not in the business of giving ‘opinions’. It is a decision, she says.

15 Jun 2015

Judge president Mlambo states that he will adjourn for 15 minutes.

Before he does, Goodman for the SALC gets to reply.

15 Jun 2015

Mlambo: “Do you persist this matter is not urgent?”

“We are not taking issue that the matter is urgent," Mokhari replies.

15 Jun 2015

“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.

15 Jun 2015

“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."

15 Jun 2015

“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."

15 Jun 2015

“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.

15 Jun 2015

“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.

15 Jun 2015

“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.”

15 Jun 2015

“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.”

15 Jun 2015

“It is our understanding that President al-Bashir has immunity,” Mokhari says.

“There is no inconsistency with SA law and international law.”

15 Jun 2015

Advocate William Mokhari for the government now gets up to speak...

15 Jun 2015

Goodman: “He [Bashir] is subject to the jurisdiction of this court.”

15 Jun 2015

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.”

15 Jun 2015

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.

15 Jun 2015

“If Bashir has left, how will government explain the blind ignorance of a High court order?” asks Goodman.

15 Jun 2015

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.

15 Jun 2015

Court is continuing on the assumption that al-Bashir is still in the country.

15 Jun 2015

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."

15 Jun 2015

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.

15 Jun 2015

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.

15 Jun 2015

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.

15 Jun 2015

Al-Bashir’s jet was repositioned late last night from OR Tambo International Airport to Waterkloof presumably for better security control, Erika Gibson says.

15 Jun 2015

It is still not 100% clear if Al-Bashir was on board the plane. But his plane has just left the airforce base.
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