State’s bid to withdraw Bashir matter can’t go unchallenged

ON OCTOBER 19, the South African government submitted its Instrument of Withdrawal to the United Nations secretary-general seeking to commence the process of withdrawal from the Rome Statute.

Justice Minister Masutha then announced that the Constitutional Court case involving the Minister of Justice and others v the Southern Africa Litigation Centre (SALC), otherwise known as the Bashir case, would “now be withdrawn”. He failed to consider that the state cannot unilaterally withdraw from a Constitutional Court case. Instead, the rules of the Constitutional Court must be followed.

On October 23, the DA electronically served legal papers challenging the constitutionality of the government’s instrument of withdrawal, and citing all parties to the Bashir case. The SALC will participate as an independent party in the case brought by the DA.

The push for withdrawal began after the arrival of Sudanese President Bashir in South Africa in June 2015, triggering South Africa’s domestic and international law duty to arrest him for subsequent transfer to The Hague. President Bashir is wanted for war crimes, genocide and crimes against humanity, and there are two international arrest warrants, issued in 2009 and 2010 respectively.

The 2009 ICC warrant was endorsed in South Africa. Despite existing arrest warrants, President Bashir was not arrested, forcing the SALC to approach the North Gauteng High Court on an urgent basis seeking the implementation of the arrest warrants.

The Constitutional Court matter is to be heard on November 22. The state has announced its intention to withdraw this case, yet withdrawal must be conducted in terms of the Constitutional Court Rule 27, which states: “Whenever all parties, at any stage of the proceedings, lodge with the Registrar an agreement in writing that a case be withdrawn… the Registrar shall, if the Chief Justice so directs, enter such withdrawal, whereupon the Court shall no longer be seized of the matter.”

The SALC intends to challenge the government’s attempts to withdraw from the Constitutional Court case as matters of international and domestic criminal justice warrant the attention of the highest court in the country.

“The state cannot be allowed to act with little or no regard for the rule of law and the Constitution. South Africa should be at the forefront of protecting human rights and fighting for justice for victims of genocide, war crimes and crimes against humanity,” said Kaajal Ramjathan-Keogh, executive director of the SALC. Instead, the government has sided with suspected perpetrators and brought the nation’s reputation into disrepute. This must be rigorously challenged.”

Whilst the SALC believes that justice is better served domestically, the SALC also believes firmly in supporting international criminal justice, which includes supporting and critically engaging with the ICC. Whilst the ICC is imperfect and in need of reform, it requires its member states to constructively engage as opposed to merely abandoning it. South Africa should be at the forefront of engagement with the court and be proactive in the fight against impunity. Angela Mudukuti International Criminal Justice Lawyer at SALC