South Africa blames Sudanese officials for Bashir’s escape, says ICC withdrawal considered
June 25, 2015 (WASHINGTON) – The South African government on Thursday submitted its explanation as to how Sudanese president Omer Hassan al-Bashir managed to leave the country despite a local court order to prevent him from doing so pending a decision on case asking for his arrest.
The director general of the Department of Home Affairs Mkuseli Apleni said in the submission that his office notified all ports of entry and exit about the court order but that Bashir nonetheless sneaked out due to a deliberate move by the Sudanese delegation.
“Two representatives of Sudan, in the company of the protocol officer from the Department of International Relations and Cooperation (DIRCO) handed a set of passports to the department of home affairs immigration officers,” Apleni said.
“I should at this stage interpose and confirm that the officials of the department of home affairs at the Waterkloof Air Force Base were at all relevant times hereto aware of the court order handed down by this honorable court on 14 June, ” he testified.
“After receipt of the passports, the immigration officer first of all checked to determine whether any of the passports belonged to President Bashir. The immigration officer concluded that the passport of President Bashir was not among the passports provided”.
The South African official asserted that as a result “it would then appear from the above that President Bashir departed from the republic without his passport presented to the immigration officer by the two Sudanese representatives who were accompanied by the protocol officer of DIRCO. The latter contention is fortified by the fact that verification on the passport details of President Bashir against the movement control system of the department of home affairs reveals that president Bashir indeed entered the Republic of South Africa but there is no record of him leaving the republic”.
But the government’s narrative drew sarcasm and disbelief by many in South Africa.
“[A] “protocol officer” accompanied the Sudanese delegation to Waterkloof and was there when the passports were presented to immigration — why did he or she not speak up, knowing full well that Mr Bashir was sneaking out? And what about the presidential VIP protection officers who escorted the convoy — do court orders not apply to all state employees?” said an editorial on Business Day newspaper.
Paula Van Wyk, a reporter for Netwerk 24, posted on Twitter saying “What upsets me is that we are supposed to believe that gov a) lost Bashir; b) were unaware he drove with escort into a National Keypoint”.
“Because unless Bashir had Harry Potter’s invisibility cloak on, I don’t understand how he, “unbeknown of gov”, left. Please explain”.
“We’re crippling tourist trade with strict new entry & exit rules, but a wanted president sneaks out without being noticed?” South African author and columnist Max du Preez posted on Twitter as well.
In Khartoum, the Sudanese foreign ministry declined to comment on the affidavit saying it does not wish to attach too much importance to it.
The explanation on circumstances surrounding Bashir’s departure come at the heels of a story published last weekend in South Africa’s Sunday Times alleging that the presidency, defense and police ministry were determined to protect Bashir’s stay in South Africa – even if it meant flouting court rulings and undermining the constitution.
“When people were making noise on Sunday that he must be arrested, we just told Bashir to relax,” a security service source was quoted as saying.
“We had given him the assurance. We just told him he was going home and we would deal with the court later,” the source added.
Another source said that senior government ministers at an AU summit gala dinner “were gloating on how they are going to teach the judges a lesson by secretly arranging for Bashir to leave before the matter is heard in court.”
However, the South African government issued a statement rubbishing this report.
On Wednesday, the North Gauteng High Court reprimanded the government for flouting its own laws saying that they undermined the country’s constitutional democracy in allowing Bashir’s exit.
“A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues,” presiding Judge Dunstan Mlambo said.
Mlambo also invited the National Director of Public Prosecutions (NDPP) “to consider whether criminal proceedings are appropriate”.
But the NDPP Shaun Abrahams was quoted by eNews Channel Africa as saying that he will not be the one making the call on possible charges linked to the Sudanese president’s escape from South Africa.
The National Prosecution Authority (NPA) said that, legally speaking, the NDPP can’t decide to institute a prosecution. Only a deputy director can do that. The director does, however, have the power to review the deputy’s decision.
It added that Abrahams won’t be involved in any way with the decision to charge anyone linked to Bashir’s escape, as there may be perceptions that he has a conflict of interest in the case.
“If there’s any review of the matter and he feels that his presence in court may be construed as a conflict of interest, then he will obviously delegate to someone in his office,” said NPA Spokesperson Luvuyo Mfaka.
No timeline has been given for a decision on whether to seek charges against government officials.
“We will have to get the record and study it accordingly in line with our mandate,” NDPP spokesperson Mfaka told News24.
‘WE MAY WITHDRAW’
Earlier today the South African presidency made its most direct threat to withdraw from the International Criminal Court (ICC) which has issued the arrest warrants for Bashir for war crimes, crimes against humanity and genocide allegedly committed in Darfur since 2003.
South Africa, as an ICC member, was obliged to arrest Bashir but chose not to on the grounds that he enjoys immunity as one of the delegations attending the African Union (AU) summit something which was dismissed by the High Court in Pretoria.
“The ICC must have been aware that South Africa would, in the execution of the warrant, breach its existing treaty obligations with the AU [African Union]. That must be the only plausible reason why the ICC had invited South Africa to consult with it. Having extended an invitation to South Africa to consult, the ICC had a duty to consult with good faith with South Africa and to assist it to comply with its obligations to the ICC and the AU,” South African minister in the Presidency Jeff Radebe said.
“We have challenges with the ICC and those matters will be looked at as we go forward. Government will be appointing a group of ministers that will be interacting with the ICC,” Radebe added.
He said South Africa may, as a last resort, consider withdrawing from the ICC.
“Such a decision will only be taken when South Africa has exhausted all remedies available to it in terms of the Rome Statute of the International Criminal Court, the Charter of the United Nations and other international law instruments.”
“We’ll consider referring this matter to the International Court of Justice for a decision,” Radebe explained.
He disclosed that his government would shortly make arrangements to enter into formal discussions with the ICC on matters of concern, and they would also propose amendments to the Rome Statute to clarify and amplify the consulting and cooperation obligations of the court towards state parties.
“South Africa will [also] enter into immediate discussion with the AU and its member states on how African dispute resolution mechanisms can be implemented without delay to ensure that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation,” the minister added.
“More particularly, South Africa will enter into multilateral and bilateral negotiations with other African countries to expedite the reform of the African Court on Human and Peoples’ Rights and other regional tribunals.”
Radebe also reiterated that they respect the rule of law and emphasized that there had been no collective decision to allow Bashir to leave the country.
(ST)