• Sudanese leader visited South Africa for African Union summit
  • Government's failure to detain al-Bashir was unlawful: court

South Africa’s Supreme Court of Appeal upheld a High Court ruling that the government broke the law when it defied an order to prevent Sudanese President Umar al-Bashir from leaving the country pending a decision on whether he should be arrested under an International Criminal Court warrant.

The government’s failure to take steps to arrest and detain al-Bashir so he could be surrendered to the ICC was inconsistent with its obligations and unlawful, the appeals court said Tuesday in a judgment delivered in the central city of Bloemfontein. State lawyers had argued that al-Bashir was guaranteed immunity from prosecution when he attended an African Union summit in Johannesburg in June.

President Jacob Zuma’s administration now must decide whether to pursue the case in the Constitutional Court. If it doesn’t, the National Prosecuting Authority will have to take action against those who defied the High Court’s instructions, said Angela Mudukuti, a lawyer at the Southern African Litigation Centre, which filed the lawsuit seeking al-Bashir’s arrest.

‘War Criminals’

“We need to be vigilant to ensure that South Africa does not become a safe haven for suspected perpetrators of egregious crimes,” Kaajal Ramjathan-Keogh, the center’s executive director, said in a statement. “The South African government should seek to uphold the rule of law instead of shielding suspected war criminals.”

Al-Bashir, 72, has ruled Sudan for a quarter century since taking power in a military coup. The ICC, based in The Hague, indicted al-Bashir in 2009 and 2010 for his alleged 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 the United Nations.

While al-Bashir departed from South Africa from the Waterkloof air force base, government officials told the High Court it wasn’t aware that he was aboard the plane because his passport wasn’t shown to officials. The appeals court found this explanation wasn’t plausible and said the authorities’ conduct was “disgraceful.”

Before it's here, it's on the Bloomberg Terminal. LEARN MORE