Minister withdraws Bashir appeal

Decision to leave the ICC removes need to pursue case

THE South African gover nment will be withdrawing its Constitutional Court application for leave to appeal the Supreme Court of Appeal’s decision which chastised the Pretoria authorities for failing to arrest wanted Sudan’s President Omar al-Bashir when he visited in June last year.

Minister of Justice and Correctional Services Michael Masutha said that in essence the SCA had 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, 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.

The minister said South Africa’s withdrawal from the Rome Statute of the International Criminal Court, which he announced yesterday, “removes the necessity at least insofar as this aspect is concerned of continuing with the appeal”.

An application for leave to appeal the decision of the SCA set down for hearing at the Constitutional Court on November 22, 2016 will be withdrawn, he added.

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

When Bashir came to Joburg to attend the AU summit last year, the high court issued an urgent order to the government to detain him until the court had ruled whether or not he should be arrested.

As a member of the ICC, South Africa was obliged to arrest him and hand him over to the ICC

However, the government allowed him to leave the country untouched.

And so on June 24 the high court ruled that the government had broken the law and violated the constitution by failing to arrest 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 and the Implementation of the Rome Statute of the International Criminal Court Act, which put the ICC’s Rome Statute into domestic statutes.

In September last year, 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 Bashir, which was also domesticated in South African law, the Diplomatic Immunities and Privileges Act, which obliges it to grant immunity against arrest to foreign heads of state and government.

But the high court judges said that 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 the high court judgment.

The government’s application for leave to appeal was opposed by the Southern African Litigation Centre, a Joburgbased rule of law NGO which originally asked the high court to order the detention and arrest of Bashir.

In March, the SCA dismissed the state’s appeal against the earlier decision by the North Gauteng High Court that its failure to arrest 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 for ms of immunity, including head of state immunity, and that it was bound by its obligations under the Roman Statute and therefore had had to arrest Bashir.