South Africa’s High Court faces a key test of credibility as it readies a response to the state’s decision to ignore its order to stop Sudanese President Umar al-Bashir, who’s indicted on war-crimes charges, from leaving the country.
The government is scheduled on Wednesday to present an affidavit on why it let al-Bashir leave on June 15 while the High Court was deciding whether he should be detained under an International Criminal Court indictment. A government lawyer announced his departure moments after Judge Dunstan Mlambo ordered preparations for al-Bashir’s arrest.
“It’s a very telling moment for the court and for the government and therefore for our system of justice,” Richard Calland, an associate professor of public law at the University of Cape Town, said by phone on Monday. “It’s hard to think of any previous occasion where the level of failure to comply with a court order is so obvious.”
The court may charge senior members of President Jacob Zuma’s administration with contempt and order other government officials to implement sanctions against them. Zuma already has drawn criticism by opposition parties for failing to comply with a recommendation by the nation’s graft ombudsman to repay taxpayers’ money spent on a 215-million rand ($18-million) upgrade of his private home. Police Minister Nkosinathi Nhleko absolved him of any wrongdoing.
While South Africa signed the Rome Statute that set up the ICC, the government said it offered al-Bashir immunity because he was attending an African Union summit in Johannesburg.
The ruling African National Congress wants an overhaul of the ICC, which South Africa voluntarily joined and can also choose to leave, Cooperative Governance and Traditional Affairs Deputy Minister Obed Bapela told lawmakers in Cape Town on Tuesday.
Zuma’s administration Monday denied newspaper reports that ministers met to plan the safe passage of al-Bashir, who left the country from the Waterkloof Air Force base near Pretoria.
African nations have criticized the ICC, based in The Hague, because all eight of the investigations the ICC has opened since it was formed in 2002 are on the continent.
At Wednesday’s hearing, Mlambo is expected to explain the reasons for the court’s judgment, and the government will have to file its affidavit or explain why it’s not ready, said Kaajal Ramjathan-Keogh, executive director of the Southern Africa Litigation Centre, the Johannesburg-based human-rights group that brought the lawsuit to force the arrest of al-Bashir.
“Government remains committed to finalize this matter through the court process,” Phumla Williams, the cabinet’s acting spokeswoman, said by e-mail on Monday.
Al-Bashir, 71, has ruled Sudan for a quarter century since taking power in a military coup. He won elections in April that the main opposition parties boycotted.
The ICC indicted al-Bashir in 2009 and 2010 for his role in atrocities in Sudan’s western Darfur region, where insurgents took up arms in 2003. As many as 300,000 people have died in the conflict, mainly from illness and starvation, according to United Nations estimates.
“Sudan is not a member of the ICC and therefore not subject to its jurisdiction,” the Sudanese embassy in Nairobi, the capital of Kenya, said by e-mail on Monday. “The ICC is deficient as it propagates selective justice.”
South Africa’s refusal to ensure al-Bashir stood trial in The Hague was a devastating blow for the ICC, said Mark Ellis, executive director of the London-based International Bar Association.
“If the ICC is to survive, there needs to be a reaffirmation by the international community to assist the court in enforcing its decision and arrest warrants,” he said by e-mail.