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Al-Bashir saga: ICC conduct to feature in govt's appeal

Government will appeal the High Court ruling that found its failure to arrest al-Bashir was unconstitutional.

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

JOHANNESBURG - While government has not revealed its reasons for appealing the Omar al-Bashir court ruling, it's believed the conduct of the International Criminal Court (ICC) during negotiations two weeks ago will feature in the argument.

Government announced yesterday that it will appeal the High Court ruling that found government's failure to arrest al-Bashir on an ICC warrant was unconstitutional.

The court found that South Africa's international legal obligations trumped a government notice and cabinet decision to offer the president immunity.

Law professor Kathy Govender says a successful appeal to a full bench seem unlikely to happen.

"They would have to convince the court that an AU resolution and the executive determination will allow it to overwrite a law of this country. I can't see the government winning on that one."

Government's Phumla Williams provided no clue as to the basis for their appeal.

"Documentation is still being prepared by but the reasons will be unpacked in the affidavit that we will be submitting within the prescribed period."

Court papers will need to be field by the end of this week.

LISTEN: Al-Bashir evasion: 'Sometimes political objectives outweigh the law'

GOVERNMENT FACING AN UPHILL BATTLE

Government is facing an uphill battle in appealing the High Court ruling.

A full bench led by Judge Dunstan Mlambo criticised government for failing to fulfil its legal obligations to the 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The judges dismissed the argument that a government notice and Cabinet decision superseded its duties adopted in the Rome Statute.

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

She 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.

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

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