State faces prosecution
Judge slams government over al-Bashir debacle
AFTER barely a week as head of the National Prosecuting Authority (NPA), Shaun Abrahams finds himself juggling a political hand-grenade after the Pretoria High Court advised him to consider prosecuting the state over its handling of the Omar al-Bashir fiasco.
Judge Dunstan Mlambo said the departure of the Sudanese president last week despite a court ruling demonstrated the state’s disregard for order.
“For this reason, we find it prudent to invite the NDPP [National Director of Public Prosecutions] to consider whether criminal proceedings are appropriate.”
NPA spokesman Luvuyo Mfaku said they had noted the judgment.
Mlambo said the undermining of the rule of law by the government was often done gradually and surreptitiously, and the courts must fearlessly address this through its judgments and not hesitate to keep the executive within the law.
The judge said a democratic state based on the rule of law could not exist or function if the government ignored its constitutional obligations and failed to abide court ders.
“If the state, an organ of state or state official does not abide by court orders, the democratic edifice will crumble stone by stone until it collapses and chaos ensues.
“As a court, we are concerned with the integrity of the rule of law and the administration of justice,” he said.
Dispelling the ANC’s assertion that the court was acting against the interests of the state, Mlambo said the court would not have concerned itself with policy decisions that fell outside its jurisdiction.
Al-Bashir, who was attending the African Union (AU) summit in Johannesburg, escaped the country last week, despite an interim order grounding him pending judgment on the application for South African authorities to detain him and hand him over to the International Criminal Court (ICC). by or-
The Southern Africa Litigation Centre approached the court for the order after the ICC called on South Africa to hold al-Bashir on two warrants of arrests for genocide and gross human rights violations in the Darfur conflict.
The court concluded that as a signatory to the Rome Statute that founded the ICC, South Africa was obliged to arrest and surrender al-Bashir.
Giving reasons for the ruling, Mlambo demolished the government’s defence that al-Bashir was protected by the immunity granted to AU delegates.
He said under the Rome Statute terms, heads of state did not enjoy immunity.
“It means that the immunity that might otherwise have attached to [al- Bashir] as head of state is excluded or waived in respect of crimes and obligations under the Rome Statute,” the judge said.
Mlambo said the Immunities Act provided for the International Relations and Cooperation minister to extend immunities and privileges to any person of her choice, but this could not be done to prevent the surrender of a person to the ICC.
The government is expected to make its submission to the court today, giving reasons as to why it ignored the court order.