South Africa loses appeal over 'disgraceful' al-Bashir blunder

South Africa's Supreme Court of Appeal has slammed the Pretoria government for unlawfully allowing Sudanese president Omar Hassan al-Bashir to exit the country while he was wanted by the International Criminal Court.

Natanael Alfredo Nemanita Ginting

The SCA has upheld a High Court ruling that the South African government broke the law when it defied a court order to arrest and detain al-Bashir pending a decision as to whether he should be arrested under an International Criminal Court warrant. The court dismissed the government's argument that President al-Bashir had been guaranteed immunity from prosecution when he traveled to Johannesburg to attend an African Union summit last June. President Jacob Zuma's administration will now need to decide whether to take its case to the Constitutional Court. If it opts not to do so, the National Prosecuting Authority will be required to take action against those who ignored the court's instruction that President al-Bashir be kept in the country.

President al-Bashir stands accused by the ICC of genocide, war crimes and crimes against humanity committed in the embattled southern Sudanese district of Darfur. The Pretoria High Court had ruled that South Africa, a signatory to the Rome Statute which created the ICC, should have arrested President al-Bashir when he arrived in the country. However, the African Union has accused the ICC of targeting the sitting heads of African countries over those on other continents for pursuit and prosecution.

The Zuma administration has argued that its obligations to the AU prohibits it from arresting the leaders of African countries. It has also insisted that it did not know that President al-Bashir had left the country when he vanished from the AU summit, adding that all relevant ports of entry had been alerted to the court order blocking his departure. However, the SCA has slammed the government's defence as 'risible' because President al-Bashir's passport was among those handed to South African authorities by the summit's Sudanese delegation.

'The affidavit failed to explain how a head of state, using a military air base reserved for dignitaries, could possibly [have] left the country unobserved,' the SCA said.

In October last year, the South African government called an AU summit to discuss a possible mass exit from the ICC, arguing that the court had lost its way and was disproportionately targeting the African region. Though the motion was eventually rejected, the ruling African National Congress indicated that it planned to review and possibly withdraw South Africa's membership of the ICC. Sources: Bloomberg Business; The Telegraph; Business Standard

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