‘Govt must answer how al-Bashir fled SA’

The government has been given seven days to explain how and why Omar al-Bashir exited South Africa.

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

JOHANNESBURG - The High Court in Pretoria has ordered the government to explain how Sudanese President Omar al-Bashir left South Africa in contravention of a court order.

The court found in favour of the Southern African Litigation Centre and ordered al-Bashir's arrest hours after he left the country from Waterkloof Air Force Base.

The ruling however, is largely academic given that that the Sudanese president left on a plane more than three hours before the ruling was made.

Al-Bashir's plane took off at 11.46am and is expected to touch down in Khartoum at about 6.30pm.

Government only confirmed the president's departure at about 3pm this afternoon.

Al-Bashir is wanted on several charges including genocide and crimes against humanity.

Judge President Dunstan Mlambo found government's failure to arrest al-Bashir when he arrived in South Africa unconstitutional.

"The respondents are forth with compelled to take on reasonable steps to prepare to arrest President Bashir without a warrant and detain him pending a formal request for his surrender from the International Criminal Court [ICC]."

The government has been given seven days to explain how and why al-Bashir exited South Africa in contravention of a court order.

"We would request an affidavit be filed, disclosing the time when he left, the port of entry or exit that he used to leave," added Mlambo.

Expert David Hoile says the ICC has proven itself to be dysfunctional.

"A court that has been mired in irregularities legally; a court that has been mired in prosecutorial misconduct of a nature that in most western states the prosecutor would have been disbarred."

Hoile says the independence of any court depends on its funding; and that the five major funders of the ICC are the big five colonial powers within Africa.

"The reality is that anywhere between 60 and 66 percent of the funding of the International Criminal Court comes from the European Union. So this is, in fact, a European Union funded and European Union directed."

The judge further compelled government to arrest al-Bashir and detain him pending a formal request for his surrender from the ICC.

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

At the same time, South Africa could face censure in the United Nations Security Council for failing to take appropriate action to detain and hand over Sudan's president to the ICC.

Western analysts say the South African government facing tough questions from the Pretoria High Court could also be grilled in the United Nations powerhouse.

The ICC could have the UN Security Council make similar demands, say analysts, citing the 2011 example of Kenya being censured for failing to detain al-Bashir.

Apart from having to explain to the court how al-Bashir was allowed to flee, the authorities also have to explain the failure of their diplomatic efforts to prevent him from coming into South Africa in the first place.

It was then that Advocate William Mokhari confirmed that the Sudanese president had left the country, which rendered this application moot.

It emerged earlier that a Sudanese aircraft with the call sign Sudan 01 departed from Waterkloof Air Force Base, but Mokhari told the court that al-Bashir's name was not on the passenger list.

Mlambo says it is concerning that government violated yesterday's interim court order preventing the president from leaving the country.

"It is of concern to us that an order of this court that was issued and that was clear has not been complied with one way or the other."

He ordered government to submit an affidavit explaining when and how al-Bashir exited South Africa.

Meanwhile, South Africa's relationship with the ICC has been thrown into the mix by both al-Bashir's presence and his sudden departure at the African Union summit in Sandton.

The African National Congress is now officially a sceptic saying the ICC that wants to try al-Bashir for genocide in Darfur is no longer useful as a court of last resort.

Leaders at the summit have been left picking up the pieces of their gathering after confirmation that Sudanese President has defied a court order by heading home.