Government was wrong to let Al-Bashir go: SCA's full judgement

15 March 2016 - 12:49 By Ernest Mabuza

The Supreme Court of Appeal (SCA) on Tuesday dismissed an appeal by government to set aside a high court judgment which held that its decision not to detain Sudanese President Omar al-Bashir was inconsistent with the Constitution.

The SCA said the conduct of government in failing to take steps to arrest and detain Al-Bashir‚ for surrender to the International Criminal Court (ICC)‚ when he arrived in South Africa was inconsistent with South Africa’s obligations in terms of the Rome Statute as well as section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002‚ and was unlawful.

Al-Bashir arrived in the country on June 13 last year to attend the African Union Summit‚ despite there being a warrant for his arrest issued by the ICC‚ which seeks to try him for alleged war crimes.

South Africa‚ as a signatory of the Rome Statute and having enacted local law adopting the statute‚ was bound to execute the warrant of arrest.

The Southern Africa Litigation Centre (SALC) sought the execution of the ICC warrant.

Despite a court order instructing the state to ensure it prevented Al-Bashir from leaving the country‚ the Sudanese president left South Africa after the summit.

In its appeal before the SCA‚ government had argued that South Africa had a duty under international law to respect the immunity of a serving foreign head of state.

The court held that government’s decision not to detain Al-Bashir was inconsistent with the Constitution.

Final Judgment in al Bashir case