PRETORIA – Dunstan Mlambo, the Judge President of the Gauteng Division of the High Court, has urged prosecutors to determine how Sudan’s President Omar al-Bashir slipped out of South Africa.
A fortnight ago, the SA Litigation Centre brought an urgent court order to have Bashir arrested.
The International Criminal Court (ICC) first issued a warrant of arrest against the Sudanese president in 2009. He is accused of inciting war crimes, among other charges, relating to the bloody conflict in Darfur.
In February 2003, the Khartoum government and Janjaweed militia responded to rebel attacks in Golo. Thereafter, Janjaweed rebels raided settlements and villages in Darfur, murdering people of certain African ethnicicities, raping women and killing ethnic minorities.
In 2004, the UN's emergency relief co-ordinator Jan Egeland briefed UN's Security Council on the conflict.
He argued “war crimes, crimes against humanity, ethnic cleansing, and massacres of the worse kind” were occurring in Darfur.
Judge Mlambo, who is the head of the High Court in Gauteng, recommended the South African government be investigated for breaking the law by allowing Bashir to leave South Africa on June 15.
Bashir attended the 25th AU Summit held at the Sandton International Convention Centre. He departed on a presidential plane, which departed from Waterkloof Air Force Base.
The judge president detailed the reasons why High Court Judge Hans Fabricius ruled that South African authorities should arrest the head of state.
Judge Fabricius handed down a temporary court order barring Bashir from leaving the country, but Bashir returned to Sudan nonetheless.
In his Wednesday address, Judge Mlambo cited the Rome Statute of which South Africa is a signatory. He said the state’s claims that Bashir enjoyed immunity as an AU Summit delegate were misguided.
“Members of the UN agree to accept and carry out the decisions of the council,” said Judge Mlambo on the rules and regulations set out by the UN Security Council, which can refer cases to the ICC.
This is how international body came to investigate Bashir.
Judge Mlambo further emphasised clauses of the South African constitution, and the separation of powers.
He said the high court was not the appropriate forum for bilateral policy discussions, as they were not matters with which the court would have concerned itself.
“As a court we are concerned with the integrity of the rule of law and the administration of justice,” said Judge Mlambo.
Turning to Bashir’s departure, Mlambo said the government’s actions the spurned the high court ruling.
“The judicial power of the republic rests in the courts. No person or organ or state may interfere with the function of the courts.”
He finally recommended the national director of public prosecutors investigate “if criminal proceedings are appropriate”.
The recommendation was met by murmurs of support from the bench.
Acting cabinet spokesperson Phumla Williams disputed reports that government officials held secret meetings arranging a smooth exit for Bashir.
Bashir's visit and departure came under heated debate in the National Assembly on Tuesday, June 23.