South Africa violated law when Omar al-Bashir fled, court rules

The South African government “clearly violated” the law by allowing Sudan’s president, Omar al-Bashir, to leave the country, a court ruled yesterday, adding that criminal charges should be considered against those responsible for his escape.

High court judge Dunstan Mlambo also questioned the government's alleged ignorance around the Sudanese president's efforts to leave the country last week and suggested the court was misled to facilitate Mr Bashir's exit.

On Monday last week the high court had ordered the government to detain Mr Bashir, who was attending an African Union summit in South Africa, while it considered an application for his arrest to answer charges of genocide and war crimes at the International Criminal Court (ICC).

While the state’s legal representation repeatedly assured the court Mr Bashir was in country during the hearing, it transpired the Sudanese leader had left from Waterkloof air force base near Pretoria.

Mr Mlambo said that where “this [alleged deception] occurs in court proceedings the court must fearlessly address this through its judgment and not hesitate to keep the executive within the law”.

Mr Bashir is suspected of being involved in the death of an estimated 300,000 people in Sudan since 2003.

It is alleged he armed pro-Arab militias to fight black African Sudanese after rebels took up arms in western Darfur region. He was charged by the Hague-based ICC in 2009.

However, the African Union (AU) has in recent years urged its members to defy the ICC as it maintains the court is a tool used by western nations to achieve their aims in Africa.

South African officials had previously argued any arrest was illegal as Mr Bashir had diplomatic immunity because he was attending an AU summit.

However, the Southern African Litigation Centre, which brought the court application to detain Mr Bashir, maintained international law and South Africa’s obligation to it superseded AU rules.

The government has until today to present an affidavit to the Pretoria court setting out the circumstances around Mr Bashir’s departure, and the litigation body has indicated it will decide how to proceed based on what this document entails.

South Africa's Sunday Times newspaper quoted a government source as saying it was agreed at a meeting of security ministers that Mr Bashir would be protected "even if it meant flouting court rulings and undermining the constitution".