Government loses al-Bashir appeal


File: Sudan's leader Omar al-Bashir left the country on Monday just moments after the court ruled in favour of his arrest.

JOHANNESBURG -- The South African government has lost its bid to have the North Gauteng High Court ruling, that it should have arrested Sudanese President Omar al-Bashir  when he was in the country, overturned.

Bashir was in South Africa to attend the African Union (AU) Summit in June last year.

The Southern Africa Litigation Centre (SALC) filed the urgent application for Bashir&39;s arrest at the Pretoria court.

Bashir is wanted by the International Criminal Court (ICC) for war crimes and crimes against humanity for atrocities committed in the Darfur conflict.

As a signatory to the Rome Statute, and the ICC Act of 2002 SA is legally obliged to detain Bashir in the country and ensure his extradition to the Hague.

But before the North Gauteng High Court gave its verdict Bashir was allowed to leave the country.

Despite his absence the court ruled that Bashir should be arrested – the SA government appealed the ruling.


Last month, government argued in the Supreme Court of Appeal that as a sitting head of state Bashir was protected by his diplomatic immunity hence the reluctance to arrest him.

Its lawyer Advocate Jeremy Gauntlett told the court that there was no obligation on South Africa to arrest Bashir.

He was referring to the fact that a notice was gazetted six days before Bashir arrived stating that all delegates at the summit will enjoy diplomatic immunity.

But the SALC, which took government to the North Gauteng High Court to force it to arrest the Sudanese president, argued that it could not be in the interest of justice to grant diplomatic immunity to someone wanted for war crimes and crimes against humanity. 

It also claimed that genocide was still continuing in Sudan&39;s Darfur region.

In his submission for the SALC, Advocate Wim Trengove said the question on whether Bashir should have been arrested while in in the country centred not around whether he would have been prosecuted in the country’s courts but rather that he should have been handed over to the ICC for prosecution.

ANC spokesman Zizi Kodwa said the party has noted the Supreme Court of Appeal’s dismissal.

"Government has indicated that they will study the judgment before committing themselves to any further action. Accordingly, the ANC awaits government’s decision on this matter," said Kodwa.

Final Judgment

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