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SCA dismisses govt’s appeal in Omar al-Bashir matter

The court has found govt’s failure to arrest Sudanese President Omar al-Bashir was unlawful.

Sudanese President Omar al-Bashir speaks during a press conference on 30 November, 2014. Picture: AFP.
Sudanese President Omar alBashir
Local

PRETORIA – The Supreme Court of Appeal (SCA) has dismissed government’s appeal, finding that its failure to arrest Sudanese President Omar al-Bashir was unlawful. 

The SCA handed down its judgment in Bloemfontein today. 

It has described the government’s explanation for how the Sudanese president left the country, seemingly unnoticeable, as laughable. 

The court found that either government or its counsel attempted to mislead the High Court as to the whereabouts of al-Bashir, saying either way it was disgraceful conduct. 
The SCA ruled that the failure to arrest and detain al-Bashir, to surrender him to the International Criminal Court (ICC) was unlawful. 

It further found that government erroneously relied on a proclamation to confer immunity on al-Bashir as a head of state. 
The Southern African Litigation Centre (SALC)  has welcomed the decision. 

Government last month appealed the High Court’s ruling that the adoption of the Rome Statute legally obligated South Africa to arrest al-Bashir when he visited the country last year.

The Sudanese president was in South Africa in June to attend the African Union (AU) Summit being held in Johannesburg.

He slipped out of the country in contravention of a court order

Al-Bashir is wanted by the ICC on charges including genocide and crimes against humanity. 

The state argued that al-Bashir was protected from arrest by provisions of South Africa's Diplomatic Privileges and Immunities Act, because he is a sitting head of state.  

It further argued that there has been no development in international law that has abolished this interpretation. 

However, the SALC told the court that the legislation which implemented the Rome Statute placed an obligation on the state to execute the warrant of arrest. 

It added that the provisions are clear and are not trumped by the act. 

The Helen Suzman Foundation weighed in, arguing that the Constitution placed a further burden on the state to ensure those accused of crimes against humanity are brought to book. 

(Edited by Tamsin Wort)

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