Bashir court was wrong — state
THE state lodged an appeal in the High Court yesterday and said the court was wrong to issue an arrest order for Sudanese President Omar alBashir while he was in the country.
THE state lodged an appeal in the High Court yesterday and said the court order to arrest Sudanese President Omar al-Bashir, while he was in the country for an African Union summit, was wrong.
The state argued in court papers that the High Court was wrong to order the government to arrest Mr Bashir because serving heads of state had immunity.
Mr Bashir, who is wanted by the International Criminal Court (ICC) for genocide, war crimes and crimes against humanity, fled SA despite the interim court order.
His dramatic escape — which unfolded as the court was hearing argument on the issue — earned the government a stern rebuke by the High Court in Pretoria for an apparent disregard for the rule of law. The case sparked criticism of the judiciary by politicians. But in an unprecedented comeback last week, the judiciary came out in force to condemn the criticism.
In their application for leave to appeal, 12 government parties — including the ministers of justice, police, international relations and co-operation and home affairs — said the High Court had “erred” on a number of grounds. The parties criticised the court for arriving at a premature “impression” that the government had breached the interim order and also for allowing this impression to “enter its judgment and affect its orders”.
The state said: “The court should have awaited the filing of the explanatory affidavit before making any such finding.” This was a reference to an affidavit, filed days after the judgment, explaining that Mr Bashir’s passport was not presented to anyone at Air Force Base Waterkloof, from which his aircraft departed on June 15.
The court should not have made assumptions based on media reports, said the government.
The High Court judgment was wrong from its first paragraph because it asked the wrong question, contended the state.
In the judgment, a full bench led by Gauteng Judge President Dunstan Mlambo said the question to be answered was whether “a Cabinet resolution coupled with a ministerial notice” were capable of suspending the country’s duty to arrest a head of state, against whom the ICC had issued arrest warrants.
What the court should have asked, said the government, was whether there was a legal duty to arrest Mr Bashir in the first place. And, if there was, whether there were any “countervailing duties” and how these were to be balanced. The court should have decided that the Diplomatic Immunities and Privileges Act precluded Mr Bashir’s arrest while a serving head of state, the government said.
The state also claimed in its application that the judges had wrongly equated the court having jurisdiction to arrest Mr Bashir with the government having a duty to arrest him.
The judges were also wrong to give “pre-eminence” to the Rome Statute, which established the ICC. Even in the context of international human rights law, there was still immunity and the court should have applied the immunities act, said the state.
The government wants the appeal to be heard by the Supreme Court of Appeal.