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Government's ignorance questioned in al-Bashir debacle

A judge says criminal prosecution should be considered for those responsible for breaching the court order.

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

JOHANNESBURG - The High Court in Pretoria has questioned government's alleged ignorance about Omar al-Bashir's departure from the country and suggested that the court was in fact misled to facilitate his discreet exit.

Gauteng Judge President Dunstan Mlambo was commenting on what the court considers a clear breach of a court order.

He was handing down reasons for his order last week, which stated that South Africa was bound by its obligations to the International Criminal Court.

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

Judge Mlambo says on the morning that al-Bashir left, government provided no explanation for filing its affidavit nearly two and a half hours later than the agreed upon time.

"The lack of an explanation for the lateness is particularly significant as the answering affidavit only consisted of 24 typed pages."

He says the government's advocate then assured the court that al-Bashir was still in the country while it later emerged he had already left.

"How is it possible that the Sudanese plain would take off without the respondents knowing whether president al-Bashir was on board or not."

The court has found that government's reliance on local diplomatic immunity laws to shield the Sudanese president from arrest was ill-conceived and misguided.

Judge Mlambo says the Rome Statute gives effect to International Human Rights Law in South Africa.

Mlambo says cabinet's decision and subsequent government notice affording al-Bashir immunity had no legal effect.

Media impact of South Africa's failure to arrest Omar Al-Bashir.

The judge president says criminal prosecution should be considered for those responsible for breaching the court order.

"For this reason we also find it prudent to invite the National Director of Public Prosecutions to consider whether criminal proceedings are appropriate."

Mlambo has also issued a stern warning to government that it is undermining democracy when it ignores court orders.

He says South Africa as a constitutional democracy is grounded in the rule of law.

"If the state, an organ of state or a state official does not abide by court orders the democratic edifies will crumble stone by stone until it collapses and chaos ensues."

Media impact of South Africa's failure to arrest Omar Al-Bashir.

The judge added that undermining the courts is a direct threat to democracy.

"A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligation and fails to abide by court orders."

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

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