South Africa blames Sudanese officials for Bashir’s escape, says ICC
withdrawal considered
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June 25, 2015 (WASHINGTON) – The South African government on Thursday
submitted its explanation as to how Sudanese president Omer Hassan
al-Bashir managed to leave the country despite a local court order to
prevent him from doing so pending a decision on case asking for his
arrest.
JPEG - 16 kb
Sudanese President Omer HAssan al-Bashir arrives in Khartoum after a
flight from Johannesburg on June 15, 2015 (AFP Photo/Ebrahim Hamid)
The North Gauteng High Court had asked the government last week to
file an affidavit to detail why Bashir was allowed to head back home
in defiance of their interim order that prohibited his departure.
The director general of the Department of Home Affairs Mkuseli Apleni
said in the submission that his office notified all ports of entry and
exit about the court order but that Bashir nonetheless sneaked out due
to a deliberate move by the Sudanese delegation.
“Two representatives of Sudan, in the company of the protocol officer
from the Department of International Relations and Cooperation (DIRCO)
handed a set of passports to the department of home affairs
immigration officers,” Apleni said.
“I should at this stage interpose and confirm that the officials of
the department of home affairs at the Waterkloof Air Force Base were
at all relevant times hereto aware of the court order handed down by
this honorable court on 14 June, ” he testified.
“After receipt of the passports, the immigration officer first of all
checked to determine whether any of the passports belonged to
President Bashir. The immigration officer concluded that the passport
of President Bashir was not among the passports provided”.
The South African official asserted that as a result “it would then
appear from the above that President Bashir departed from the republic
without his passport presented to the immigration officer by the two
Sudanese representatives who were accompanied by the protocol officer
of DIRCO. The latter contention is fortified by the fact that
verification on the passport details of President Bashir against the
movement control system of the department of home affairs reveals that
president Bashir indeed entered the Republic of South Africa but there
is no record of him leaving the republic”.
But the government’s narrative drew sarcasm and disbelief by many in
South Africa.
"[A] "protocol officer" accompanied the Sudanese delegation to
Waterkloof and was there when the passports were presented to
immigration — why did he or she not speak up, knowing full well that
Mr Bashir was sneaking out? And what about the presidential VIP
protection officers who escorted the convoy — do court orders not
apply to all state employees?" said an editorial on Business Day
newspaper.
Paula Van Wyk, a reporter for Netwerk 24, posted on Twitter saying
"What upsets me is that we are supposed to believe that gov a) lost
Bashir; b) were unaware he drove with escort into a National
Keypoint".
"Because unless Bashir had Harry Potter’s invisibility cloak on, I
don’t understand how he, "unbeknown of gov", left. Please explain".
"We’re crippling tourist trade with strict new entry & exit rules, but
a wanted president sneaks out without being noticed?" South African
author and columnist Max du Preez posted on Twitter as well.
In Khartoum, the Sudanese foreign ministry declined to comment on the
affidavit saying it does not wish to attach too much importance to it.
The explanation on circumstances surrounding Bashir’s departure come
at the heels of a story published last weekend in South Africa’s
Sunday Times alleging that the presidency, defense and police ministry
were determined to protect Bashir’s stay in South Africa - even if it
meant flouting court rulings and undermining the constitution.
“When people were making noise on Sunday that he must be arrested, we
just told Bashir to relax,” a security service source was quoted as
saying.
“We had given him the assurance. We just told him he was going home
and we would deal with the court later,” the source added.
Another source said that senior government ministers at an AU summit
gala dinner “were gloating on how they are going to teach the judges a
lesson by secretly arranging for Bashir to leave before the matter is
heard in court.”
However, the South African government issued a statement rubbishing this report.
On Wednesday, the North Gauteng High Court reprimanded the government
for flouting its own laws saying that they undermined the country’s
constitutional democracy in allowing Bashir’s exit.
“A democratic State based on the rule of law cannot exist or function,
if the government ignores its constitutional obligations and fails to
abide by Court orders. A Court is the guardian of justice, the
corner-stone of a democratic system based on the rule of law. If the
State, an organ of State or State official does not abide by Court
orders, the democratic edifice will crumble stone-by-stone until it
collapses and chaos ensues,” presiding Judge Dunstan Mlambo said.
Mlambo also invited the National Director of Public Prosecutions
(NDPP) “to consider whether criminal proceedings are appropriate”.
But the NDPP Shaun Abrahams was quoted by eNews Channel Africa as
saying that he will not be the one making the call on possible charges
linked to the Sudanese president’s escape from South Africa.
The National Prosecution Authority (NPA) said that, legally speaking,
the NDPP can’t decide to institute a prosecution. Only a deputy
director can do that. The director does, however, have the power to
review the deputy’s decision.
It added that Abrahams won’t be involved in any way with the decision
to charge anyone linked to Bashir’s escape, as there may be
perceptions that he has a conflict of interest in the case.
“If there’s any review of the matter and he feels that his presence in
court may be construed as a conflict of interest, then he will
obviously delegate to someone in his office,” said NPA Spokesperson
Luvuyo Mfaka.
No timeline has been given for a decision on whether to seek charges
against government officials.
"We will have to get the record and study it accordingly in line with
our mandate," NDPP spokesperson Mfaka told News24.
‘WE MAY WITHDRAW’
Earlier today the South African presidency made its most direct threat
to withdraw from the International Criminal Court (ICC) which has
issued the arrest warrants for Bashir for war crimes, crimes against
humanity and genocide allegedly committed in Darfur since 2003.
South Africa, as an ICC member, was obliged to arrest Bashir but chose
not to on the grounds that he enjoys immunity as one of the
delegations attending the African Union (AU) summit something which
was dismissed by the High Court in Pretoria.
“The ICC must have been aware that South Africa would, in the
execution of the warrant, breach its existing treaty obligations with
the AU [African Union]. That must be the only plausible reason why the
ICC had invited South Africa to consult with it. Having extended an
invitation to South Africa to consult, the ICC had a duty to consult
with good faith with South Africa and to assist it to comply with its
obligations to the ICC and the AU,” South African minister in the
Presidency Jeff Radebe said.
“We have challenges with the ICC and those matters will be looked at
as we go forward. Government will be appointing a group of ministers
that will be interacting with the ICC,” Radebe added.
He said South Africa may, as a last resort, consider withdrawing from the ICC.
“Such a decision will only be taken when South Africa has exhausted
all remedies available to it in terms of the Rome Statute of the
International Criminal Court, the Charter of the United Nations and
other international law instruments.”
"We’ll consider referring this matter to the International Court of
Justice for a decision," Radebe explained.
He disclosed that his government would shortly make arrangements to
enter into formal discussions with the ICC on matters of concern, and
they would also propose amendments to the Rome Statute to clarify and
amplify the consulting and cooperation obligations of the court
towards state parties.
“South Africa will [also] enter into immediate discussion with the AU
and its member states on how African dispute resolution mechanisms can
be implemented without delay to ensure that the most serious crimes of
concern to the international community as a whole must not go
unpunished and that their effective prosecution must be ensured by
taking measures at the national level and by enhancing international
co-operation,” the minister added.
“More particularly, South Africa will enter into multilateral and
bilateral negotiations with other African countries to expedite the
reform of the African Court on Human and Peoples’ Rights and other
regional tribunals.”
Radebe also reiterated that they respect the rule of law and
emphasized that there had been no collective decision to allow Bashir
to leave the country.
(ST)
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