Supreme Court of Appeal (SCA): In a matter arising out of the indictment of the incumbent President of Sudan – Omar Hassan Ahmad Al Bashir by the International Criminal Court, who was charged for committing genocide, crimes against humanity and war crimes, a five judge bench of Lewis, Ponnan, Shongwe, Majiedt and Wallis JJA dismissed the appeal filed by the Government of South Africa stating that the decision of the South African Government of not arresting Al-Bashir was inconsistent with the laws of South Africa.
The convict Al-Bashir was accused and convicted by the ICC for committing war crimes and crimes against humanity in Sudan’s Darfur region, resulting in the issuance of two warrants of arrest against him. The High Court in Pretoria had ordered the Government to detain the Sudanese leader Al-Bashir under an international warrant issued by the International Criminal Court (ICC) when he was in South Africa on 13-06-2015 to attend the 25th African Union Summit in Johannesburg. However, when the matter was heard in appeal before the SCA, the Government argued that it had obligations towards the African Union (AU) which prohibits it from arresting the leaders of African countries. They further averred that they were unaware that President Al-Bashir had left the country during the AU summit. Taking a tough note, the SCA slammed the Government’s defence as ‘risible’ because President Al-Bashir’s passport was with the South African authorities, and hence, they could’ve easily detained him at any point in time.
The Court while reminding the Government that South Africa was a signatory to the Rome Statute, which formally establishes the International Criminal Court (ICC) and bestows member countries with the right to arrest anyone who is accused of committing such crimes, termed the action of the Government of not arresting the convict as unlawful. [The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre (867/15) decided on 15/03/2016]