South African government loses appeal over not arresting Sudan president

South Africa’s high court yesterday refused the government leave to appeal its recent court ruling that it acted unconstitutionally by not arresting Sudanese President Omar al-Bashir when he was in Johannesburg in early June.

The court's decision came the morning after South African president Jacob Zuma confirmed the Sudanese government was expected to attend the Forum on China-Africa Co-operation (Focac) in Johannesburg in December, as it was a member.

As head of the Sudanese government Mr Bashir would under normal circumstances be expected to attend the high-powered event.

Such an eventuality would put the South Africans in a difficult position, given their refusal to arrest him in May and hand him over to the International Criminal Court (ICC) where he faces charges of war crimes and genocide.

In early September a three-judge panel from the ICC asked the government to provide answers as to why Mr Bashir, who was in South African for an African Union summit, was allowed to leave the country.

The government defied a June high court order to arrest the Sudanese president while it studied an application by the Southern African Litigation Centre to have the authorities compelled to extradite him to the Hague-based ICC.

On Monday evening when addressing a gathering of diplomats, Mr Zuma said his government was currently studying the ICC's official request. South Africa has been a signatory to the Rome Statute of the ICC since its inception and as such is obliged to comply with its requests.

“We will then [once the high court has ruled on the state’s application to appeal its ruling] make a determination as to the next course of action, if any,” Mr Zuma said. The ICC gave South Africa until October 4th to respond to its request.

In relation to Mr Bashir’s attendance at Focac, Mr Zuma said it should be remembered that Sudan was a member of the Forum and as such, the Sudanese government was expected to participate.

While opposition parties yesterday welcomed the high court’s refusal to grant government leave to appeal the ruling it made earlier in the day, the ANC said its decision must be challenged in the Supreme Court of Appeal.

“The AU [African Union] has the same status as the UN [United Nations] when it comes to immunities with other multinational institutions with respect to participation,” said ANC national spokesperson Zizi Kodwa.

Heads of state facing international sanctions, arrest warrants and travel bans can attend official UN events without fear of arrest.

The government has argued that applying this reasoning, Mr Bashir was immune to international arrest when attending June’s AU summit in South Africa.