Al-Bashir saga: Govt to appeal court judgment

Govt says the reasons for its appeal will be contained in an affidavit to be submitted later this week.

FILE: Sudanese President Omar al Bashir. Picture: Jean-Jacques Cornish.

PRETORIA - Government has announced it intends appealing the High Court judgment which found its failure to arrest Sudanese president Omar al-Bashir was unconstitutional.

Government said the reasons for its appeal against the al-Bashir ruling will be contained in the filing affidavit which is expected to be submitted by the end of this week.

A full bench led by Gauteng judge president Dunstan Mlambo slammed government for allowing the Sudanese president to flee the country, in direct contravention of a court order.

Al-Bashir is wanted by the International Criminal Court (ICC) on several charges including genocide and crimes against humanity.

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

Minister in the Presidency Jeff Radebe announced at the post cabinet briefing last week that government believed that the international criminal court acted in bad faith.

He said on the weekend that al-Bashir arrived in the country; the government had entered into negotiations with the International Criminal Court (ICC) in respect of executing the warrant of arrest.

Radebe said without those negotiations concluding, the prosecutor obtained an ICC order compelling the government to act.

While government has made this revelation, it was never presented in court when the matter was being opposed.


Last week, the Home Affairs Director-General Mkuseli Apleni submitted an affidavit to the High Court saying that al-Bashir left undetected because his delegation failed to produce his passport at immigration control.

The High Court in Pretoria had ordered government to explain the circumstances that led to al-Bashir's exit.

Apleni said Sudanese representatives informed the Department of International Relations and Coorperation (Dirco) they intended moving from the Sandton Convention Centre to the Waterkloof Air Force Base.

He says Dirco then informed the police to facilitate the movement.

Alpeni said the batch of passports was checked by immigration officers at the air base who confirmed al-Bashir's documents were not among them.

The documents were then processed and returned to the Sudanese representatives before they departed.


Radebe accused the International Criminal Court (ICC) of not consulting with South Africa in good faith.

Radebe said government intends holding formal talks with the ICC to discuss its concerns with the Rome Statute.

"We have challenges with the ICC and those matters will be ventilated as we go forward. Government will be appointing a group of ministers that are going to be interacting with the ICC. We firmly believe that the consultation had not been taken in good faith."

Government said the court, before finalising consultations with government, decided South Africa was obligated to arrest al-Bashir when he attended the AU Summit in Johannesburg.

He said the international court knew South Africa would have difficulty arresting the Sudanese leader because of its obligations to the AU.

Radebe said South Africa may, as a last resort, consider withdrawing from the ICC in the wake of the al-Bashir debacle.

He added that a decision to withdraw from the ICC will only be taken after South Africa exhausts all other remedies.