JOHANNESBURG – South Africa will have to defy its own judiciary or risk the wrath of other African nations if the High Court orders the government to arrest visiting Sudanese President Omar al-Bashir on war crimes and genocide charges.
Judge Hans Fabricius told the government Sunday to keep al-Bashir in South Africa while he decides whether to order the Sudanese leader’s arrest for two International Criminal Court indictments for alleged atrocities in the Darfur region. Al- Bashir arrived to attend an African Union summit in Johannesburg on Saturday, after President Jacob Zuma’s administration published a notice granting all attendees immunity.
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, said Dirk Kotze, a political science professor at the University of South Africa. The court resumed briefly at 11:30 a.m. Monday and adjourned for another hour.
“It’s an absolute lose-lose situation,” Kotze said by phone from Pretoria, the capital. “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. Before the adjournment, he asked government lawyers to report which ports of entry have not responded to the court ruling Sunday that al-Bashir be prevented from departing.
A lawyer for the government, William Mokhari, told the court that al-Bashir was still in South Africa as far as the state’s legal team knew.
Al-Bashir will stay in South Africa until the end of the summit, Rabie Abdel Ati, a senior official in Sudan’s ruling National Congress Party, said late Sunday in a text message.
“Immunity of all presidents participating in summit as declared by South African government will make the court order void,” he said.
South Africa’s ruling African National Congress said on its Twitter account Sunday that it “holds the view that the International Criminal Court is no longer useful for the purposes for which it was intended.”
The court case was brought by the Southern Africa Litigation Center, a Johannesburg-based human-rights group.
Al-Bashir’s plane was moved to Waterkloof air force base in Pretoria from O.R. Tambo International Airport, east of Johannesburg, South Africa’s Talk Radio 702 reported Monday, without saying how it got the information.
Clayson Monyela, a spokesman for South Africa’s Department of International Relations, didn’t respond to telephone calls or messages seeking comment.
“Al-Bashir is a fugitive from justice,” Netsanet Belay, Amnesty International’s research and advocacy director for Africa, said in an emailed statement. South Africa should “spare no effort” in seeking to arrest the president, Sidiki Kaba, head of the Assembly of States to the Rome Statute of the ICC, said Saturday in a statement on the court’s website.
The government will seek to avoid the political complications that would stem from detaining al-Bashir, according to Shadrack Gutto, a law professor at the University of South Africa.
“The courts can rule that he shouldn’t leave,” Gutto said by phone 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.”