Government backs down on Omar Al-Bashir ConCourt fight

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Sudanese President Omar al-Bashir waves on stage during a ceremony to declare an end to 13 years of conflict in Darfur on September 7, 2016 in the North Darfur state capital El-Fasher.

TSHWANE - The South African government will be withdrawing its Constitutional Court application for leave to appeal the Supreme Court of Appeal’s (SCA) decision which chastised the Pretoria authorities for failure to arrest wanted Sudan’s President Omar Al-Bashir when he visited in June last year.

Minister of Justice and Correctional Services Michael Masutha told reporters at a briefing in Pretoria on Thursday that in essence the Supreme Court of Appeal identified the problem which needed to be addressed.

“The effect of the withdrawal from the Rome Statute as well as the repeal of the Implementation Act thus completes the removal of all legal impediments inhibiting South Africa’s ability to honour its obligations relating to the granting of diplomatic immunity under the international law as provided for under our domestic legislation,” said Masutha.

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Masutha said South Africa’s withdrawal from the Rome Statute of the ICC, which he announced on Friday, “therefore removes the necessity at least in so far as this aspect is concerned of continuing with the appeal”.

“An application for leave to appeal the decision of the Supreme Court of Appeal set down for hearing at the Constitutional Court on November 22, 2016 will now be withdrawn,” said Masutha.

The ICC has a warrant of arrest for Al-Bashir for allegedly committing genocide, war crimes, and crimes against humanity in Sudan’s rebellious western region of Darfur.

As a member of the ICC, South Africa was obliged to arrest him and hand him over to the ICC when he visited the country.

When Al-Bashir came to Johannesburg to attend the African Union (AU) summit last year, the high court issued an urgent order to the government to detain him in the country until the court had ruled whether or not he should be arrested. But the government allowed him to leave the country.

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And so on June 24 the high court ruled that the government had broken the law and violated the Constitution by failing to arrest Al-Bashir and disobeying the high court’s order to detain him.

The government had not only violated its obligations to the ICC, it had also broken South African law, the Implementation of the Rome Statute of the International Criminal Court Act, which put the ICC’s Rome Statute into domestic statutes.

In September 2015, the high court denied the government leave to appeal against its June 2015 judgment.

The government argued that it had a higher obligation not to arrest Al-Bashir, which was also domesticated in South African law, the Diplomatic Immunities and Privileges Act, which obliged it to grant immunity against arrest to foreign heads of state and government.

But the high court judges said the ICC implementation act was clearly a higher obligation because it had been enacted after the Immunities Act and had expressly overridden the diplomatic immunity of heads of state and government.

So the government petitioned the SCA directly for leave to appeal against the high court judgment.

The government’s application for leave to appeal is being opposed by the Southern African Litigation Centre, the Johannesburg-based rule of law NGO which originally asked the high court to order the detention and arrest of Al-Bashir.

In March, SCA dismissed the state’s appeal against the earlier decision by the North Gauteng High Court that its failure to arrest Sudanese president Omar al-Bashir had been unconstitutional.

The appeal court found that by passing the Implementation of the Roman Statute Act in 2002, South Africa had effectively annulled all forms of immunity, including head of state immunity, and that it was bound by its obligations under the Roman Statute and therefore had to arrest Bashir.