South Africa prosecutors awaiting outcome of Bashir’s appeal before investigating breach of court orders

September 17, 2015 (WASHINGTON) – The National Prosecuting Authority (NPA) in South Africa said that it will await the conclusion of the appeal process by the government on the case of a visit by Sudanese president Omer Hassan al-Bashir to the country last June.

Bashir’s attendance at the African Union (AU) summit in South Africa last June sparked a diplomatic and legal mess for the government there which not only violated the International Criminal Court (ICC) obligations but also an order by a local court to prevent the Sudanese leader from departing pending a decision on whether to extradite him.

The ICC issued two arrest warrants for Bashir charging him with war crimes, genocide and crimes against humanity in Sudan’s western region of Darfur.

The North Gauteng High Court in South Africa had reprimanded the government in its ruling last June for flouting its own laws saying that they undermined the country’s constitutional democracy in allowing Bashir’s exit.

It also called on the National Director of Public Prosecutions (NDPP) “to consider whether criminal proceedings are appropriate” against officials who facilitated Bashir’s departure.

But the NPA said they will await an appeal process to complete before contemplating any charges.

“No, we are not going to consider the matter right now,” National Prosecuting Authority spokesperson Luvuyo Mfaku said on Wednesday according to News24.

“They will petition the Supreme Court of Appeal and we deem it prudent to wait until the appeal process is finalized,” Mfaku added.

The South African government was dealt a new legal setback this week when the High Court refused to allow it to appeal the June ruling before the Supreme Court of Appeals (SCA) saying that the matter is now moot with Bashir out of the country and that they have no chances of prevailing on appeal anway.

The judges reiterated that Bashir enjoyed no immunity as the government asserted in its arguments before the court and that the ICC Act of 2002 enacted by the parliament trumped the Immunities Act which the state used as justification for ignoring its obligations as a signatory to the Rome Statute of the ICC.

“We do not hold the opinion that the appeal has reasonable prospects of success at all. President al-Bashir enjoyed no immunity from arrest or from prosecution under customary international law as a serving head of State.”

The government can still seek a hearing by the SCA despite the ruling though some local legal experts said SCA could refuse to take up the case. They have 20 days to take that route.

Speaking in Washington after meetings with U.S. Secretary of State John Kerry, South African Foreign Minister Maite Nkoana-Mashabane said: “The government is busy studying the outcome and we definitely would take the matter up at the appropriate time”.

(ST)