Govt heads to ConCourt for appeal in Omar al-Bashir case

The Supreme Court of Appeal in Bloemfontein confirmed that al-Bashir should have been arrested.

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

JOHANNESBURG - The government has filed for leave to appeal with the Constitutional Court an earlier judgment in the case involving Sudanese President Omar al-Bashir.

The Supreme Court of Appeal (SCA) ruled last month that government's failure to arrest him was unlawful and inconsistent with the country's obligation to the international criminal court.

The Sudanese president was in South Africa last June to attend the African Union Summit being held in Johannesburg.

He slipped out of the country in contravention of a court order.

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

The government says after studying the Supreme Court of appeal judgment and seeking legal opinion, it believes the interpretation of legislation relating to immunity of a foreign sitting head of state needs to be pronounced on by the Constitutional Court.

It believes legal uncertainties in terms of customary international law and domestic law have not been resolved, and should be decided by the country's highest court.

Government believes the Constitutional Court could come to a different conclusion.

The Department of Justice's Mthunzi Mhaga explains, "We believe that the interpretation of both the customary national law and the domestic law in so far as they relate to immunity granted to foreign sitting Head of States needs a pronouncement by the constitutional Court as the highest court in land and final decider on constitutional matters."

The SCA found that government erroneously relied on a proclamation to confer immunity on al-Bashir as a head of state.

LISTEN: SA had obligation to arrest al-Bashir

Last month, the Southern African Litigation Centre (SALC) said South Africa could not suspend justice by being held hostage by threats of withdrawal from the International Criminal Court.

In the wake of the court ruling last year, the African National Congress (ANC) mooted the idea of withdrawing from the body, suggesting that it was being used as a tool by powerful countries.

The SALC's Angela Mudukuti says the rule of the law must not be compromised.

"We can't be held hostage by the threat of withdrawal and fail to implement the ICC Act and the Rome Statute of the International Criminal Court. I don't think it bodes well for justice, it doesn't bode well for the victims of these crimes who are actually the most important people when you look at this case and other cases like it."

The Sudanese president is wanted on an international warrant of arrest for several crimes, including genocide and crimes against humanity.