South Africa will have to defy its own judiciary or risk the wrath of other African nations if its High Court orders the government to arrest visiting Sudanese President Omar al-Bashir on war crimes and genocide charges.
Judge Hans Fabricius ordered the government to keep al-Bashir in South Africa while the court decides whether to order the Sudanese leader’s arrest for two International Criminal Court (ICC) indictments for alleged atrocities in the Darfur region.
Al-Bashir arrived to attend an African Union (AU) summit in Johannesburg on Saturday. A Sudanese airplane left the country yesterday, South African media including Netwerk24 reported.
“On the assumption that al-Bashir left the country while there is still a dispute going on and there is a clear court order that he may not leave the country in the interim, then we have a crisis,” Stellenbosch University public law professor Gerhard Kemp said by telephone yesterday.
A signatory to the Rome Statute that established the ICC, South Africa’s obligations to arrest al-Bashir contradict the pledge it made to the AU, University of South Africa politics professor Dirk Kotze said.
“It’s an absolute lose-lose situation,” Kotze said by telephone from the capital, Pretoria. “They are really in a fix. If they do arrest him, they will probably be criticized by most other African countries. I think they will probably let him go.”
Gauteng High Court Judge President Dunstan Mlambo convened a full bench to hear the case. Yesterday he asked government lawyers to report which ports of entry have not responded to the court ruling that al-Bashir be prevented from departing.
Al-Bashir left South Africa yesterday, Sudanese Ministry of Foreign Affairs spokesman Ali al-Sadig said by text message.
A lawyer for the government, William Mokhari, told the court that he had no official confirmation that al-Bashir had departed.
If al-Bashir has left South Africa, the court will have no jurisdiction in the case, Mlambo said.
The Sudanese plane departed from Air Force Base Waterkloof in Pretoria, Netwerk24 reported.
Al-Bashir’s airplane was moved to Waterkloof from O.R. Tambo International Airport, east of Johannesburg, South Africa’s Talk Radio 702 reported earlier yesterday, without saying how it received the information.
Before the start of the summit, South African President Jacob Zuma’s administration published a notice granting all attendees immunity.
“We are the host. He was not invited by South Africa and it is international practice, including the United Nations Summit, that participants are given immunity from any arrest,” ruling African National Congress spokesman Zizi Kodwa told reporters at the court.
The court case was brought by the Southern Africa Litigation Centre, a Johannesburg-based human rights group.
South African Department of International Relations spokesman Clayson Monyela did not respond to telephone calls or messages seeking comment.
The government will seek to avoid the political complications that would stem from detaining al-Bashir, University of South Africa law professor Shadrack Gutto said.
“The courts can rule that he shouldn’t leave,” Gutto said by telephone from Pretoria. “It’s the government that will have to prevent him from leaving. I don’t see the government arresting him. The matter will go on appeal and by the time it is resolved, he will have left the country.”
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