On 14 June 2015, the government disregarded the High Court’s order to detain al-Bashir – who was attending an African Union (AU) summit – pending a court ruling the next day on whether he should be arrested.

But by the time the High Court issued a warrant for al-Bashir’s arrest on 15 June, unbeknown to the judges, al-Bashir was long gone. The High Court found that the South African government acted unlawfully in failing to arrest al-Bashir and letting him leave the country. The government appealed the ruling but on Tuesday last week, the SCA rejected its appeal.

Delivering the judgment for the SCA, Judge Malcolm Wallis said the government’s claim that it did not know al-Bashir was on Sudan’s presidential aircraft when it flew out of Waterkloof Airforce Base on 15 June last year was ‘risible’. Either the government itself or its lawyers had deliberately misled the High Court several times that day by telling it that al-Bashir was still in the country when it knew he had already left nearly four hours earlier, Wallis said. The government’s conduct was ‘disgraceful’ he added.

The confirmation by the SCA that the government had essentially perjured itself ought to pave the way for the National Prosecuting Authority to charge whoever was responsible, as Anton du Plessis, Executive Director of the Institute for Security Studies (ISS) points out. He adds that this is very unlikely, given the political stakes at play.

The SCA’s decision could also have taken the country a step closer to a motion to remove President Jacob Zuma from office for a serious violation of the law, if his complicity in the decision, as head of the executive, were to be established, du Plessis notes.

And establishing Zuma’s complicity should not be difficult, given that his Small Business Development Minister Lindiwe Zulu told Parliament on 23 June last year, shortly after al-Bashir’s visit, that, ‘the decisions that were taken [about the visit] were collective decisions by the Cabinet of President Jacob Zuma who leads the ANC.’

South Africa's President Jacob Zuma. Photo: Stringer/Reuters
South Africa’s President Jacob Zuma. Photo: Stringer/Reuters

As of yesterday the government had not announced whether it would appeal the SCA ruling to the Constitutional Court, but ISS senior researcher Ottilia Anna Maunganidze believes it probably will. Both she and du Plessis think that would be a bad move for the government, because the Constitutional Court could lend even greater authority to the High Court’s condemnation of its action.

Meanwhile, back in The Hague, the ICC is still waiting for South Africa to explain why it failed to comply with the ICC’s request to arrest al-Bashir. It has allowed South Africa to postpone providing those reasons until the government’s appeal process is complete. With the SCA judgment, South Africa has edged closer to having to finally account for its actions. Whether South Africa would face any real consequences if the ICC determined it had failed to meet its obligations to the court is unclear. The ICC could refer it to the UN Security Council which could, in turn, take punitive action.

Du Plessis applauded the SCA for delivering a ‘landmark’ judgment on the core issue of whether South Africa was obliged to arrest al-Bashir – or whether it was right not to do so since he enjoyed immunity as a sitting head of state. The Gauteng Division of the High Court based its judgment that the government had broken the law on the fact that the UN Security Council had referred the Darfur situation to the ICC. And so, even though Sudan, as a non-member of the ICC, should otherwise have enjoyed immunity, the Security Council’s referral had implicitly rescinded this immunity.

At the SCA, the government had based its argument on the contention that international customary law was still undecided on whether there was an exception to the immunity of sitting heads of state in the case of the kinds of crimes al-Bashir is accused of.

Wallis said if it were only up to him he would agree with Thomas Weatherall, law adviser to the US State Department, that, ‘Protection of international criminals … from international scrutiny under the guise of State dignity is an affront to the citizens against whom grave violations of human rights are perpetrated’. However since it was not up to him, he agreed with the government’s lawyers that customary international law was not yet settled on this question.

On 4 March 2009 Sudanese President Omar al-Bashir became the first sitting president to be indicted by ICC for directing a campaign of mass killing, rape and pillage against civilians in Darfur. But in October 2013 the AU called the ICC racist for failing to file charges against Western leaders or Western allies while prosecuting only African suspects, and demanded the ICC exempt leaders from prosecution. Photo: Public domain
Sudanese President Omar al-Bashir.Photo: Public domain

Instead, though, the SCA had based its judgment on a different legal argument – that Pretoria should nonetheless have arrested al-Bashir because South Africa’s own Implementation of the Rome Statute of the ICC Act obliged it to do so. And that Act superseded the Diplomatic Immunities and Privileges Act that required South Africa to grant immunity to foreign heads of state, he argued.

South Africa’s Constitution required the Implementation Act to be interpreted both in the light of the Rome Statute, which it incorporated, and ‘in a way that promotes the spirit, purport and objects of the Bill of Rights.’ The crimes allegedly committed by al-Bashir violated many of those rights.

Wallis acknowledged that in adopting the Implementation Act, ‘South Africa was taking a step that many other nations have not yet taken’ – by going beyond customary international law as it stood.

‘If that puts this country in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that seems to me a matter for national pride rather than concern. It is wholly consistent with our commitment to human rights both at a national and an international level.’

This was the ‘landmark’ aspect of the judgment that du Plessis applauded. Indeed it is a pioneering judgment, potentially blazing a trail internationally, as did the Constitutional Court’s legalising of gay marriage.

But for it to enter such celebrated company, the Constitutional Court would have to uphold the SCA’s judgment. And that remains to be seen. If it does, that would indeed be a legal landmark. The sad part is that it might also trigger a further divergence between the paths of the judiciary and the executive, with uncertain consequences down the line.

One of those consequences might be that the ANC-led government withdraws from the ICC, as it has threatened to do. As du Plessis and Maunganidze point out, that would not relieve it of its responsibilities in the al-Bashir case, which will continue. But it would be a major blow to the ICC, which is already under pressure because of the opposition from so many African governments. Namibia has just indicated that it will withdrawand other countries may follow.

South Africa’s withdrawal from the ICC might be an even bigger blow to its own reputation back home. ‘If South Africa now attacks the ICC, it will also in effect be attacking our own law and judiciary,’ du Plessis said. ‘That’s all we need right now in terms of our international standing’. Not to mention the impact on the confidence of South Africans in the rule of law at home.

This article was first published by the Institute for Security Studies and is republished here with their permission.