Southern Africa Litigation Centre
Southern Africa Litigation Centre

The state of play in the al-Bashir saga

By Angela Mudukuti

On September 16, the North Gauteng High Court denied the South African government leave to appeal in the case pertaining to Sudanese President Omar al-Bashir.

Al-Bashir is wanted by the International Criminal Court (ICC) for crimes against humanity, genocide, and war crimes. After a United Nations (UN) Security Council referral of the situation in Darfur, the ICC found that there are six people, including al-Bashir, who are deemed to be most responsible for crimes committed. UN statistics indicate that at least 300 000 people have died since the beginning of the 2003 insurgency that triggered the commission of crimes identified by the ICC.

As a signatory to the Rome Statute of the ICC and having domesticated the Statute, South Africa is obligated to arrest al-Bashir if he is found on South African territory. South Africa failed to do so when al-Bashir attended the African Union Summit in Johannesburg, in June 2015.

Omar al-Bashir (AFP)

Omar al-Bashir (AFP)

In a bid to ensure that South Africa adheres to its domestic and international law commitments, the Southern Africa Litigation Centre (SALC) wrote to the government stating its concerns about the prospect of al-Bashir’s visit. After no meaningful response, SALC resorted to litigation upon hearing that al-Bashir had arrived and had not been arrested. SALC brought an urgent application on June 13 2015, before the High Court, seeking the immediate arrest and detention of al-Bashir. SALC managed to secure a court order for his arrest and transfer to The Hague despite that the government allowed al-Bashir to escape contrary to an interim order not to permit him to depart.

Unhappy with the ruling that their failure to arrest al-Bashir was unconstitutional and therefore invalid, the state applied for leave to appeal the judgment and on September 16 2015 leave to appeal was denied. In a unanimous judgment the court indicated that the matter was moot and that there would be no practical effect of granting leave to appeal.

Through this ruling the full bench of the North Gauteng High Court has upheld the rule of law and reinforced South Africa’s obligations in terms of international and domestic law.

However, this case has caused quite a stir. Firstly, the decision to invite al-Bashir to attend the AU Summit did not appear to be well considered. This was followed by a series of poor decisions by the government including an unprecedented attack on the judiciary prompting Chief Justice Mogoeng Mogoeng to seek a meeting with President Jacob Zuma to discuss the tension between the judiciary and the executive. Attacks included ANC Secretary General Gwede Mantashe accusing the North Gauteng High Court of having a “negative attitude” towards the government.

Following that, failure to arrest al-Bashir resulted in motions of impeachment being raised by President Zuma’s political opponents. Then, scathing and unjustified attacks against civil society organisations standing up for human rights were launched.

The state’s failing in the handling of this case included their refusal to respect the separation of powers, uphold the rule of law and protect the values enshrined in the Constitution. The current government’s conduct seems to reflect a significant shift from the Nelson Mandela era where human rights were at the centre of all foreign policy considerations.

Internationally, South Africa’s reputation has taken a severe knock. The ICC has asked the government to submit reasons by October 5 2015 for failure to arrest al-Bashir. As a signatory to the Rome Statute, South Africa has committed to cooperating with the ICC and the submission of its reasons in this matter is an act of cooperation. We are hopeful that the government will chose constructive engagement with the ICC over non-compliance.

Domestically, the state has the option to petition the Supreme Court of Appeal directly for leave to appeal, which means the litigation could continue.

This case is a stark reminder of the importance of independent, strong courts who uphold the rule of law. It has also raised awareness about the plight of the people of Sudan and reinforced the need to promote accountability and fight impunity. These two factors are vital because at the end of the day, the victims and their suffering must be recognised and addressed effectively.

Angela Mudukuti is the International Criminal Justice Lawyer at SALC.

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    • Pierre Aycard

      Angela, as you know, most citizens in South Africa supported Zuma’s violation of the rule of law (and they didn’t even notice the political incompetence you point out about his invitation to Bashir).

      It is because most people do not understand the rules. They do not understand separation of power. They do not understand what an international treaty is. They do not understand what the missions of the ICC are, or what promises the SA government made about it.

      People deserve to know. Where is political education ? Where is constitutional law education ? Where is the educational free documentation that people should receive, that could explain all of this to them ? Why aren’t there little booklets about the separation of powers ? About the difference between law and politics? About citizen’s rights in case of arrest? About labour rights? About how to exercise control over local and national political leaders?

      The government takes advantage of ignorance. To fight this, it is not enough to give people printed versions of the constitution. They need independant expert advice. It is time for lawyers, judges, unions and NGOs to spread this kind of information on a large scale. At present, those who do it do so on a small scale, and they only reach those who will make efforts to get the information. That is not enough.

    • Karl-Heinz Sittlinger

      The fact of the matter is, that at least based on the past actions, the ANC only really cares about rule if law when it suits them. And that is the real problem we are facing at the moment. If it doesn’t it’s appeal after appeal, all on tax payers coin.

    • Pierre Aycard

      “our ongoing submission to the ICC”

      The ICC is meant at preventing your government, and other governments, to commit crimes against humanity. Is it a problem for you? In addition, SA is under the ICC treaty out of your government’s choice: nobody is forced to be in the ICC, and the ICC rules apply only to those who chose to join. But interestingly, the only countries that are not are concerned are: Sudan, where a genocide has been on its way for 20 years; Burma, which was a terrible military dicatotorship practicing large scale slavery (now it is a young democracy and it has planned to join the ICC treaty); Erythrea, one of the worst dictatorships in the world, where 30% people are in jail and another 15% are in exile ; and finally… wait for it… the USA, a country commiting illegal invasions of other countries, practicing large scale torture, and causing numerous civilian causalties in illegal wars.

      So tell me again, are you proud that your government wants to leave the ICC? Do you still believe the ICC expects “ongoing submission”? If so, then I pray that you will be arbitrarily put in jail and tortured by your own government, and that your family and your people will be genocided. Then we can talk again about whether you would prefer “ongoing submission” to the ICC, or whether the ICC is a Western plot to submit you.

      In addition, the ANC government signed the ICC treaty, under Mandela, and now claims it’s “unAfrican”, under Zuma. Who do you think was more respectable and more concerned by human rights, and by the well-being of South Africans? Mandela, or Zuma?

    • RSA.MommaCyndi

      Like Pierre said, it is lack of education. African countries make up the VAST majority of the ICC and it was an African country that requested the killing of refugees, in their country. Yet the ICC is seen as a “Western Plot’.

      The saddest part of all is that our news is more interested in Syria or Palestine than with Sudan or Nigeria. Someone kills a few cartoonists in Paris and everyone knows about it. A half a million people are persecuted in Sudan and everything is dead quiet. You start to wonder why African lives are not important

    • Voldemort Rupert

      I see your point. I was not aware that we voluntarily submitted to it under Mandela – I assumed it was an apartheid hangover.
      I guess I also assumed that it was a UN/CFR/USA tool and if it was really interested in routing human rights abuses world-wide it would have stopped TPP and TIPP and climate geo-engineering and Monsanto and all the rest.
      Mostly these international fairness tools are only invoked when so-called third world govts are at fault but when big corporations abuse their power the same institutions are paid off to look the other way or block their ears.

      So can we only use ICC against govt’s? If a corporation under the guise of foreign investment causes environmental destruction and human rights abuse can we sue them at the ICC?

    • RSA.MommaCyndi

      You assume wrongly. We joined the ICC so that no other country could commit human rights atrocities against us and to protect us from future leaders, who may commit atrocities.

      The mandate of the ICC is freely available and so are the members.