IOL|Sources have confirmed that the South African government and Sudanese president Omar el Bashir have struck a deal, allowing the alleged war criminal to leave the country on Sunday night.
IOL understands that Bashir will leave tonight despite a court order banning him from leaving.
The State will proceed to court On Monday to argue against the injunction arguing that they were not able to intercede at ALL border posts given the short notice. This “deal” allows the SA government to play within the rules without losing face politically on a continental stage.
Earlier, the government came out in support of the embattled Bashir as the alleged war criminal prepared to leave the country.
SA’s Minister of Justice Michael Masuta said there was no way authorities would arrest Bashir even if the government had to fight the arrest order in the courts. But on Sunday sources confirmed that he would be leaving the country as soon as possible.
Late on Sunday night it was still unclear if Bashir had left the country but all indications were that South Africa was prepared to defy the ICC, international convention and a high court order and let Bashir leave the country’s shores unhindered – if he so wished. It would mean Bashir leaving in his wake major constitutional and diplomatic crises and a big question mark over South Africa’s continued membership of the ICC.
The African National Congress’ National Executive Committee (NEC) had earlier on Sunday sent an ominous signal when it said the ICC was “no longer useful for the purposes for which it was intended”.
The ICC has two open warrants of arrest for Bashir whom it indicted for genocide, war crimes and crimes against humanity against the people of Sudan’s western Darfur province.
As a member of the ICC, South Africa is obliged to arrest him and has in the past issued its own warrants for his arrest.
On Sunday, the Southern Africa Litigation Centre (SALC), a rule of law advocacy group, applied to the Pretoria High Court to issue an order instructing South African authorities to execute the arrest warrants against him.
A number of South African officials, foreign diplomats, and analysts at the African Union (AU), which Bashir was attending, said they believed that he would leave later on Sunday night to pre-empt a possible order from the High Court for the police to arrest him.
However, Sudanese foreign minister Ibrahim Ghandour insisted on Sunday night that Bashir would only leave at the end of the summit.
Judge Hans Fabricius was due to rule in court on Monday on whether or not the South African authorities should be compelled to arrest Bashir. The case was postponed from Sunday to allow the government to respond to an application by the SALC for the court order for the arrest, but not before Fabricius issued an interim order to border authorities in the department of home affairs to prevent Bashir leaving South Africa until he had delivered his judgement on whether or not he should be arrested.
Bashir had appeared at the AU summit earlier on Sunday and was included in the group photograph of the African leaders, and he was photographed in the hall at the start of the opening ceremony.
But some reporters were later told by Sudanese government officials that he had left the country. One of them noted that the government had said in the Pretoria hearing that it did not have the resources to monitor all exit points from the country.
This appeared to indicate that the South African government was preparing to explain that Bashir had fled the country without its knowledge. That would be its way of ducking an accusation that it had flouted its obligation to the ICC to arrest Bashir who landed at Waterkloof airforce base in Pretoria on Saturday night.
But Anton du Plessis, executive director of the Institute for Security Studies (ISS) in Pretoria, said this would be a poor excuse. “They know where he came in so they must know where he would leave from,” he said.
Nonetheless, he said he was sure that Bashir had already left or would leave the country before the court issued its judgement. “And South Africa will have to say ‘We didn’t know he was leaving’.”
South African home affairs officials and perhaps even the home affairs minister would nonetheless be held in contempt of court for failing to prevent him leaving. And South Africa would have flouted its obligations not only to the UN and the ICC, but to South African national law, as South Africa had absorbed the ICC into its own ICC Implementation Act.
“South Africa can’t really get out of this mess. So the next logical step would be for South Africa to withdraw from the court or indicate that it would do so,” du Plessis said.
And it was not a good sign that the ANC NEC had said that the ICC was no longer a useful institution
Du Plessis said he was also concerned that the AU, which already had a policy instructing its member states not to cooperate with the ICC, might decide on a mass walkout from the ICC at this summit.
But, he said he had seen a draft copy of the summit resolution on the ICC which did not go that far. Instead it repeated the existing policy of not cooperating with the ICC and calling for the deferment of cases against sitting presidents, like Bashir.
Du Plessis said he thought that some pro-ICC countries such as Botswana and Senegal had pushed back against moves by other countries for the AU to pull out en masse from the ICC.
On Friday the South African government had asked the ICC for an exemption from its obligation, on the grounds that Bashir enjoyed immunity from prosecution as he was attending an AU summit, and was therefore in the country as a guest of the AU and not South Africa.
The ICC firmly rejected the request from South Africa which placed the AU host country firmly between a rock and a hard place with its ICC obligations and international standing on the one side, and its sense of duty and brotherhood with the rest of Africa on the other.
Already this weekend South Africa, along with Nigeria, found itself in the firing line from Zimbabwean president Robert Mugabe who bluntly stated that those two countries would never get the backing from the rest of Africa for permanent seats on the United Nations Security Council because of their controversial vote on the UN Security Council Resolution 1973 in 2011, which authorised military action against the regime of Libyan dictator Muammar Gaddafi. Reports from the AU summit have it that Mugabe accused South Africa and Nigeria of betraying the continent and that they could never be trusted.
On Sunday Judge Fabricius postponed arguments relating to the arrest of Bashir to Monday morning at the request of the State’s attorneys who said they needed further time to draw up arguments against the arrest of the Sudanese president.
State attorney Michael Mokhari told the court that he had not been given enough time to peruse the applicant’s documents, saying the matter was too sensitive to be dealt with in a few hours.
“It has not been practical to get instruction from all officials, including ministers, for proper perspective on the state’s approach,” he said.
Twice before, in the run-up to President Jacob Zuma’s inauguration in 2009 and before the World Cup in 2010, the South African government had warned that if Bashir arrived for these events, it would be obliged to arrest him under its ICC obligations.
But this, the 25th AU summit is different and it has thrown up a diplomatic hot potato that South Africa could have done without. In hindsight it would probably have been best for everyone concerned if Bashir had opted to stay at home, but whatever road South African now embarks upon, one thing is clear, there will be a price to pay.-IOL