Govt facing an uphill battle in al-Bashir debacle

Government is being criticised for failing to fulfil its legal obligations to the ICC.

Sudanese President Omar al-Bashir. Picture:AFP.

PRETORIA - Government is facing an uphill battle in appealing the High Court ruling that its failure to arrest Sudanese President Omar al-Bashir was unconstitutional.

A full bench led by Judge Dunstan Mlambo criticised government for failing to fulfil its legal obligations to the International Criminal Court (ICC).

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

The Sudanese leader slipped out of the country from Waterkloof Air Force Base two weeks ago while the High Court in Pretoria was in session.

He was in South Africa to attend the African Union Summit in Sandton.

The judges dismissed the argument that a government notice and Cabinet decision superseded its duties adopted in the Rome Statute.

Law professor Karthy Govender says government will first have to apply for leave to appeal.

He says the real challenge is for government to convince the court that a domestic law, which was passed to give effect to the Rome Statute, gives allowances in certain circumstances not to arrest someone for whom there is an arrest warrant.

"Alternatively an AU resolution and an executive determination would allow us to override a law of this country, which appears quite difficult so I can't see the government winning on this point."

Government says the basis for its appeal will be set out in court papers.


While government has announced it intends appealing the decision ordering the arrest of al-Bashir, legal experts have questioned whether the courts will even entertain such an appeal.

Independent legal analyst James Grant says government would first need to convince the full bench that there is a reasonable prospect of an appeal being successful.

"Something that would be difficult to establish is, even if they were successful that there would be some practical effect to winning that appeal."

Law professor Karthy Govender said, "The challenge is they would have to convince the court that the domestic law which was passed to give effect to the wrong statue permits them not in certain circumstances to arrest someone on whom there was a warrant for arrest."

Government's grounds for lodging its appeal will be made known when it files its affidavit.