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Al-Bashir ruling demonstrates the independence of the judiciary

17 September 2015

The High Court dismissed government’s application for leave to appeal a previous order.

PRETORIA – The Southern African Litigation Centre says the latest ruling on Sudanese President Omar al-Bashir demonstrates the independence of the judiciary and its commitment to upholding the rule of law.

Yesterday, the High Court in Pretoria dismissed government’s application for leave to appeal an order which found its failure to arrest al-Bashir in June was unlawful and unconstitutional.

Al-Bashir left South Africa after the African Union summit despite a court ordering the state to prevent him from doing so.

The centre’s Angela Mudukudi says the court’s judgment shows that South Africa’s courts are independent.

“I think it paints the judiciary in a very positive light because what we see here is the manifestation of the separation of powers. We see the judiciary making strong judgments, sound in law and unafraid of the government or the powers that be. I think that important for a Constitutional democracy.”

The justice department says it’s studying the ruling to establish whether its worth petitioning the Supreme Court of Appeal directly.

Yesterday, the centre also said the ruling upheld the correct precedent by re-affirming government’s obligations to the International Criminal Court (ICC).

Mudukuti said the ruling made it clear that government had obligations to the ICC.

“We’re thrilled with the results. I think it’s important that the right precedent has been maintained and the judge has been very clear on that the previous judgment, indicating that South Africa’s duty to arrest President al-Bashir, stands.”

The Department of Justice’s Mthunzi Mhaga said they were disappointed.

“We’re of a firm view that the important issues have a bearing on public and international law. However, we will reflect on the judgment and all the issues that have been raised in a view to determine whether the judgement itself is appealable.”

Government has until next month to explain to the ICC why it failed to arrest al-Bashir.



President Jacob Zuma will have to relook his invitation list for the forum for Africa-China co-operation after the High Court in Pretoria re-affirmed the government’s obligations to arrest al-Bashir.

Zuma told the media this week that as a member of the forum, Sudan was expected to take part in the meeting scheduled for next month, prompting debate about whether al-Bashir would be returning to South Africa.

Judge Hans Fabricius made it clear that South African law does not trump obligations set out in the Rome Statute.

“President al-Bashir enjoyed no immunity from arrest or from prosecution under customary international law as a serving head of State.”

Mudukuti says the government is legally obliged to act.

“There’s a standing warrant for his arrest and the judges made it clear that South Africa is obligated to arrest him. Those rulings need to be taken seriously and President Omar al-Bashir should understand that should he come to South Africa he’s likely to be arrested.”

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