Government has asked the Constitutional Court for permission to appeal against the ruling that the government acted contrary to the constitution when it failed to detain Sudanese President Omar al-Bashir in the country last year.
The department of justice and correctional services said in a statement on Friday that it has filed for leave to appeal to the Constitutional Court against the judgment delivered by the Supreme Court of Appeal (SCA) last month.
“After scrutinizing the SCA judgment and seeking legal opinion‚ government believes that the interpretation of legislation relating to immunity granted to a foreign sitting head of state needs pronouncement by the Constitutional Court as the apex court in the land and final arbiter on constitutional matters‚” justice department spokesman Mthunzi Mhaga said in the statement.
Mhaga said the department believes the Constitutional Court “can properly pronounce” on the "legal uncertainties that have not been fully resolved by the SCA both in terms of customary international law and domestic law".
He said that government believes there is a reasonable possibility that the court will arrive at a different conclusion than the SCA
In its judgment last month‚ the SCA said government's conduct in failing to take steps to arrest and detain Al-Bashir‚ for surrender to the International Criminal Court (ICC)‚ when he was in South Africa was inconsistent with South Africa’s obligations in terms of the Rome Statute as well as section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002‚ and was unlawful.
Al-Bashir arrived in the country on June 13 last year to attend the African Union Summit‚ despite there being a warrant for his arrest issued by the ICC‚ which seeks to try him for alleged war crimes.
South Africa‚ as a signatory of the Rome Statute and having enacted local law adopting the statute‚ was bound to execute the warrant of arrest.
The Southern Africa Litigation Centre (SALC) sought the execution of the ICC warrant.
Despite a court order instructing the state to ensure it prevented Al-Bashir from leaving the country‚ the Sudanese president left South Africa after the summit.
The question that the appeal court needed to answer was whether a serving head of a foreign state enjoyed immunity against arrest in South Africa despite a warrant for his arrest and a request for co-operation by the ICC.
In its judgment on March 15‚ the SCA held that while the Diplomatic Immunities and Privileges Act continued to govern the question of head of state immunity‚ the Implementation Act excluded such immunity in relation to the obligations of South Africa to the ICC.
Judge Malcolm Wallis said when South Africa passed the Implementation Act‚ it did so on the basis that all forms of immunity‚ including head of state immunity‚ would not constitute a bar to South Africa cooperating with the ICC in arresting and surrendering persons charged with such crimes before the ICC.
Source: TMG Digital.
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