Southern Africa Litigation Centre
Southern Africa Litigation Centre

Al-Bashir: Thank goodness for the separation of powers

By Angela Mudukuti

After approaching the North Gauteng High Court on Saturday, June 13, on an urgent basis the Southern Africa Litigation Centre (SALC) managed to secure an interim order preventing President Omar al-Bashir from leaving the country pending the finalisation of the matter before court. Yet to everyone’s surprise the South African government allowed al-Bashir to leave.

Al-Bashir’s arrival and unceremonious departure has left the world wondering how the South African authorities were complicit in this so-called “great escape”. The government commenced its downward spiral into controversy and lawlessness when it cleared al-Bashir’s plane for take-off on Monday June 15 2015.

The consequences of the state’s reckless approach to justice are already being felt. South Africa’s international reputation has taken a significant blow, with its legitimacy and credibility being brought into question.

Omar al-Bashir (Reuters)

Omar al-Bashir (Reuters)

At the regional level South Africa has undermined its own credibility. Though many think this has improved South Africa’s standing among Africa Union (AU) members, I beg to differ. How can one respect a government that disobeys its own courts? Especially, when the AU’s very own human-rights body, the African Commission on Human and Peoples’ Rights, found on its 2004 visit to Sudan, that the Sudanese government had committed war crimes and crimes against humanity.

What is most surprising about the government’s conduct in this matter is that there were several alternatives that would not have put us in the quagmire we’re in now.

Firstly, South Africa could have simply refused to host the 25th African Union Summit. This is what Joyce Banda did in Malawi in 2012. The former president of Malawi refused to host the summit if al-Bashir was to remain as an invited guest. The summit was moved to Ethiopia.

South Africa could have remained consistent on this issue and behaved as it had done in the past. For example when President Jacob Zuma was inaugurated in 2009, al-Bashir was invited but the then director-general of the department of international relations and cooperation, Ayanda Ntsaluba, made it clear that should he travel to South Africa he would be arrested. The same happened in 2010 for the Fifa World Cup — al-Bashir was invited but was warned he would be arrested. On both occasions al-Bashir did not show up.

Lastly, South Africa could have simply detained al-Bashir as soon as he set foot on South African soil as per their domestic and international legal obligations, and subsequently had him transferred to The Hague.

Had the government opted for any of these options, we would all be talking about something completely different today.

Not only is the defiance of a court order a travesty for the rule of law and detrimental to South Africa’s international image, but the fact that the positive aspects and outcomes of the AU summit have been completely overshadowed by all this drama is a great pity.

The media is awash with all the negative implications of al-Bashir’s visit but I must spare a line or two to talk about two positive issues. The judiciary should be commended for its courage, impartiality and respect for the separation of powers. Montesquieu would be proud to see that the separation of powers still has a powerful and positive impact on the rule of law.

Also, we should reflect proudly on the space that currently exists in South Africa for civil society proactivity and engagement on such issues. Were it not for the Constitution that provides for access to justice and for the fact that human-rights organisations can litigate in the interest of the public, SALC would not have been able to bring this important case to the fore.

So what happens now that the state authorities have undermined the judiciary, and disregarded the Constitution? This week the court is due to hand down its judgment and the state is expected to submit an affidavit canvassing details pertaining to al-Bashir’s escape. The next phase of this saga will be determined by those two documents.

Angela Mudukuti is the International Criminal Justice Lawyer at SALC.

Tags: , ,

  • Al-Bashir ruling: Will SA do the right thing?
  • Do we have a duty to arrest Omar al-Bashir and hand him to the ICC?
  • The state of play in the al-Bashir saga
  • ANC is transmogrifying into Zanu-PF
    • RSA.MommaCyndi

      This is the most direct attack on the judiciary, to date.

      Should Bashir have been arrested has become secondary to the fact that our government wilfully, and deliberately, went against a specific legal order. That does not say good things about our ability to sustain a constitutional democracy. The government is not above the law. This is a direct attack on our legal system.

      The burning question is : will we allow it?

    • Zack

      Say Barack Obama had an arrest warrant by the ICC over his head. Would the justice system even consider (in their right minds) to demand of the SA government to arrest the President of the United States, if he were to touch ground in Mzansi. I don’t think so… the man, just like President Zuma – is a Commander in Chief of his country’s Armed Forces…
      Al Bashir is no different. Forget all other fall-out consequences of undermining another sovereign state (by arresting its sitting President)… in terms of military might, Sudan would have every right to declare war against any country that arrests its President and Commander of its Armed Forces!
      We can’t allow our Justice System to reduce our country to such confrontations (and severely polarize relations between African countries whilst at it)… the reach and clout of our country’s courts obviously has limits… and these Judges are not helping anybody if they can’t see that… really now!
      The innocence or guilt and complicity (thereof) of Al Bashir in the murder of hundreds of thousands of black-as-in-black Africans in Sudan’s Darfur region is besides the point on this matter…

    • Zack

      Relations between sovereign states cannot be dictated by Judges… it doesn’t even seem like these “legal experts” read up on the Rome Statute (set of laws and regulations) on which the ICC was founded… the judges are smoking their socks on this issue, and have themselves brewed an occasion wherein they could be undermined. The media is now huffing and puffing just about that outcome on this saying: ” the judiciary is being undermined by the executive cabinet / government” – painting the SA government as the party at fault in all of this, what really did these people expect will happen?!
      The arrest warrant of Al Bashir issued by the ICC says that Sudan (his own country) must hand him over to the ICC to be put on trial for crimes against the people of the Darfur region… for another country to be expected to carry out the terms of that arrest warrant whilst Al Bashir is still President of Sudan lacks sensibility of reason. Has there ever been a President of one country who was arrested or captured by another country outside of war-times, ever?

    • Zack

      Say Barack Obama had an arrest warrant by the ICC over his head. Would the justice system even consider (in their right minds) to demand of the SA government to arrest the President of the United States, if he were to touch ground in Mzansi. I don’t think so… the man, just like President Zuma – is a Commander in Chief of his country’s Armed Forces…
      Al Bashir is no different. Forget all other fall-out consequences of undermining another sovereign state (by arresting its sitting President)… in terms of military might, Sudan would have every right to declare war against any country that arrests its President and Commander of its Armed Forces!
      We can’t allow our Justice System to reduce our country to such confrontations (and severely polarize relations between African countries whilst at it)… the reach and clout of our country’s courts obviously has limits… and these Judges are not helping anybody if they can’t see that… really now!
      The innocence or guilt and complicity (thereof) of Al Bashir in the murder of hundreds of thousands of black-as-in-black Africans in Sudan’s Darfur region is besides the point on this matter…

    • RSA.MommaCyndi

      Bashir and Obama are leaders in their countries but they are subject to OUR laws when on OUR soil. OUR laws domesticated the Rome Statue and it negates any diplomatic immunity.

      Malawi declared that the AU could meet in their country IF Bashir did not attend. The AU moved the meeting. When Bashir was invited to President Zuma’s inauguration, it came with a disclaimer that he would be arrested if he accepted. Same disclaimer was made when he was sent the formal invitation to the 2010 World Cup. That indicates that our government was fully aware that the law would require the arrest of Bashir.

      If our government (voluntarily) signed, ratified and domesticated the Rome Statute, AND our government knew that Bashir should be arrested if he arrived on our soil, then the question has to be : WHY did our government deliberately put us in this horribly embarrassing situation?