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Al-Bashir saga: Govt to challenge court ruling

Govt says the court should've found that the Immunities Act criminalises arresting a head of state.

FILE: Sudanese President Omar al-Bashir. Picture:AFP.

JOHANNESBURG - Government has formally lodged its application for leave to appeal the high court's order that it was legally was bound to arrest Sudanese President Omar al-Bashir on an International Criminal Court (ICC) arrest warrant.

Al-Bashir visited South Africa last month to attend the African Union Summit being held in Johannesburg.

It emerged that al-Bashir had already left the country in direct breach of an interim court order after a full bench of judges ordered his arrest.

In papers filed at the High Court in Pretoria, government argues that there is no provision in the implementation of the Rome Statute, which imposes a legal duty to act contrary to sections of the Diplomatic Immunities and Privileges Act.

It was this legislation government relied on to give al-Bashir immunity when he visited South Africa.

Government argues that the court should have found that immunity precludes the endorsement and execution of a warrant of arrest.

It further states that the court should have found that sections in the Immunities Act suspends any duty to arrest, and in fact criminalises arresting a head of state.

LISTEN: 'SA only has itself to blame over al-Bashir saga'

CONSCIOUS DECISION

The tripartite alliance confirmed earlier this month that it was a conscious decision by government to disobey a high court order and allow the escape al-Bashir.

The high court in Pretoria ruled that government's failure to arrest al-Bashir was unconstitutional and ordered his detention.

Home Affairs explained that the president left unnoticed because his passport wasn't presented to immigration control.

The African National Congress's Jessie Duarte said government was bound by an African Union resolution and took a principled decision on the matter.

"It is unfortunate that we're found in a decision where we have to actually disobey a judge's order to comply with an international obligation that we have."

The party's Gwede Mantashe said from their position, it's not a pure judicial matter.

"It is also a political matter because we must back heavily on our relations on the continent."

LISTEN: Mantashe: Heads of state aren't arrested at UN, why must AU be different

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