The South African government has launched an application for leave to appeal a ruling by the Pretoria High Court which compelled it to arrest Sudanese President Omar al-Bashir ÔÇô a ruling which was nevertheless disregarded.
The decision by the government not to arrest al-Bashir gave rise to questions whether or not South Africa’s political considerations outweigh her obligations to the Rome Statute of the International Criminal Court (ICC).
Pundits were quick to point out that South Africa would not want to upset the African Union member states by arresting al-Bashir in order to please the West while seeking their backing in her ambition for a permanent seat at the United Nations Security Council.
At the time of Al-Bashir’s assisted escape, the ruling African National Congress (ANC) spokesman Zizi Kodwa had told our sister publication, The Telegraph that the Sudanese President enjoyed immunity which was granted all visiting heads of State who were then attending the African Union summit in Johannesburg about two months ago hence his non arrest.. He added that the ANC was against al-Bashir’s arrest anyway.
A full bench led by Judge President Dunstan Mlambo had serious misgivings with the government for allowing al-Bashir to flee South Africa despite an interim court order that the alleged war monger be grounded. The application for al-Bashir’s arrest was brought before the Pretoria High Court by the Southern Africa Litigation Centre.
The South African government argues that the judges erred in concluding that immunity was not confirmed on al-Bashir when he was in the country. The government line is that the Diplomatic Immunities and Privileges Act coupled with a decision by Cabinet were sufficient reasons not to arrest al-Bashir and hand him over to ICC.
In its court papers, government argues that the court erred in attributing to the Rome Statute and should have referred to domestic laws. In addition to casting aspersions on the ICC, senior members of the ANC and cabinet ministers have unleashed unwavering and blistering attacks on the court decisions of the Western Cape and the Pretoria High Courts especially when such court outcomes are unfavourable to the government.
The country’s chief Justice Mogoeng Mogoeng has asked the government to be clear and specific about its criticism of the judiciary. To this end, Mogoeng is scheduled to meet President Jacob Zuma towards the end of this month over concerns about the alleged attack on the judiciary by the executive.
South Africa has hinted it is considering pulling out of the ICC.
“South Africa has indicated that once it has exhausted the existing processes of resolving its issues with the ICC, it will certainly pronounce itself. It should however be indicated that South Africa remains committed to ensuring there is peace and stability in the world and in the continent which South Africa remains part,” cabinet spokesperson Phumla Williams told the Sunday Standard last month.
Al-Bashir is wanted by the ICC for alleged war crimes including genocide and crimes against humanity.