Pretoria high court wants the public prosecutor to investigate if the government broke the law in allowing Sudan President Omar al-Bashir to leave SA.
The court on Wednesday requested the National Director of Public Prosecutions to consider initiating criminal charges over Sudanese President Omar al-Bashir’s controversial departure from South Africa, despite a high court order expressly prohibiting it.
It found that al-Bashir, who is wanted by the International Criminal Court (ICC) for charges of genocide, war crimes and crimes against humanity, did not have immunity from arrest while attending an African Union summit in Johannesburg.
“The departure of President Bashir from this country in the full awareness of the explicit order of Sunday June 14, objectively viewed, demonstrates non-compliance with that order,” said Judge President Dunstan Mlambo.
“For this reason, we find it prudent to invite the National Director of Public Prosecutions to consider whether criminal proceedings are appropriate.”
Last week, Mlambo said the court wanted an explanation as to why al-Bashir was allowed to leave South Africa on June 15, despite an interim court order barring him from departure issued by Judge Fabricius on June 14.
“We request an affidavit to be filed with the registrar of this court within seven days, disclosing the time when he left, the port of entry or exit that he used,” Mlambo told the South African government’s lawyer William Mokhari.
“It is of concern to this court that it issues orders and then things just happen in violation of those orders. Be that as it may, that is an order we issue under the circumstances.”
The state was expected to file that affidavit by Thursday.
Al-Bashir has been indicted by the ICC for war crimes, crimes against humanity and genocide against some of the tribes of Sudan’s western Darfur region. Two warrants of arrest were issued against him in 2009 and 2010.
As a member of the ICC, South Africa is obliged to arrest him and surrender him to the ICC.
The application before the Pretoria high court was brought by nongovernmental organisation the Southern Africa Litigation Centre, which sought to compel the South African government to fulfil its obligations to the ICC.
In a heated parliamentary debate, the ANC’s lead speaker raised the threat of South Africa leaving the ICC. Obed Bapela, deputy minister of traditional affairs, said South Africa would press for reforms of the ICC, accusing it of losing credibility because countries such as the United States had failed to place themselves under the control of the Hague-based organisation.
“The ANC reserves the right to raise these reform packages and, if rejected, we will have no alternative but to review our membership of the ICC,” he said.
The opposition Democratic Alliance had accused the government of a serious breach of the Constitution by allowing al-Bashir to leave the country.
“The Zuma government has committed a crime of allowing a wanted man to evade the law,” said Stevens Mokgalapa, the DA’s shadow minister of international relations.
Plot to let al-Bashir leave
A government plot to protect and give safe passage to al-Bashir was hatched at a secret meeting held by security cluster ministers at the Taj Hotel in Cape Town five days before he landed in South Africa, reported the Sunday Times.
A senior government source with direct knowledge of the meeting said it was agreed that South Africa would protect al-Bashir by any means necessary – even if it meant flouting court rulings and undermining the Constitution.