SCA dismisses Al-Bashir appeal

July 1st, 2016
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Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre (Helen Suzman Foundation and Others as Amici Curiae) [2016] 2 All SA 365 (SCA)

 By Nomfundo Manyathi-Jele

The Supreme Court of Appeal (SCA) has dismissed the state’s appeal against a High Court ruling that government’s failure to arrest Sudanese President, Omar Al-Bashir, was inconsistent with its constitutional duties.

When Al-Bashir entered South Africa (SA) in June 2015 for an African Union (AU) summit, the South African Litigation Centre (SALC) approached the High Court for an order that government enforce an International Criminal Court (ICC) arrest warrant on him.

South Africa is a signatory to the ICC’s Rome Statute, which sets out the crimes falling within the ICC’s jurisdiction and the procedures and mechanisms for states to co-operate with the court.

On 15 June 2015, the Local Division of the High Court in Pretoria ordered government to arrest Al-Bashir and said its failure to do so would be unconstitutional. Despite this, he was allowed to leave the country.

The ICC had two outstanding warrants for Al-Bashir, issued in 2009 and 2010 and wanted him to stand trial on allegations of crimes against humanity, genocide and war crimes committed in Sudan’s western province of Darfur.

Background

According to the judgment, when President Al-Bashir arrived in SA to attend the AU assembly in June 2015 government took no steps to arrest him. It adopted the stance that it was obliged not to do so as President Al-Bashir enjoyed immunity from such arrest. Its failure to do so resulted in the respondent, the SALC, bringing an urgent application on Sunday 14 June 2015, to the High Court, seeking orders declaring the failure to take steps to arrest President Al-Bashir to be in breach of the Constitution and to compel government to cause President Al-Bashir to be arrested and surrendered to the ICC to stand trial pursuant to the two warrants.

Government opposed the urgent application and obtained a postponement until 11:30 am on Monday, 15 June 2015 to enable affidavits to be prepared. But there was concern that President Al-Bashir might leave the country in the interim in order to escape arrest. In granting the postponement, the High Court ordered that President Al-Bashir was prohibited from leaving SA until a final order was made in this application, and the respondents were directed to take all necessary steps to prevent him from doing so.

The judgment states that at the hearing the following day before a specially constituted full Bench of three judges, presided over by Judge President Dunstan Mlambo, the High Court sought the assurance from counsel leading for the government, advocate William Mokhari SC, that President Al-Bashir was still in the country. Mr Mokhari informed the court that according to his instructions President Al-Bashir was still in the country and this was repeated during the course of the argument. At about 3:00 pm the High Court made the following order:

‘1. That the conduct of the respondents to the extent that they have failed to take steps to arrest and/or detain the President of the Republic of Sudan Omar Hassan Ahmad Al-Bashir (President Bashir), is inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid;

2. That the respondents are forthwith compelled to take all reasonable steps to prepare to arrest President [Al-]Bashir without a warrant in terms of section 40(1)(k) of the Criminal Procedure Act 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court;

3. That the applicant is entitled to the cost of the application on a pro bono basis.’

According to the judgment, immediately after the order was made Mr Mokhari told the court that President Al-Bashir had left the country earlier that day. It was later discovered that he left on a flight from Waterkloof Air Base at about 11:30 am that morning.

‘Senior officials representing government must have been aware of President Al-Bashir’s movements and his departure, the possibility of which had been mooted in the press. In those circumstances the assurances that he was still in the country given to the court at the commencement and during the course of argument were false. There seem to be only two possibilities. Either the representatives of government set out to mislead the court and misled counsel in giving instructions, or the representatives and counsel misled the court. Whichever is the true explanation, a matter no doubt being investigated by the appropriate authorities, it was disgraceful conduct,’ Malcom Wallis JA held.

Wallis JA said that largely because of President Al-Bashir’s departure, the High Court refused leave to appeal, saying that the litigation had become moot. On petition to the SCA it ordered that the application for leave to appeal be set down for argument in terms of the provisions of s 17(2)(d) of the Superior Courts Act 10 of 2013 (the Superior Courts Act).

Litigation history

According to the judgment, the foundation for SALC’s argument before the High Court was the obligations undertaken by SA in terms of the Rome Statute and the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the Implementation Act). It contended that, by virtue of these, SA was obliged to give effect to the request of the ICC to enforce the two warrants for President Al-Bashir’s arrest and surrender to the ICC for prosecution in respect of the charges of war crimes, genocide and crimes against humanity.

‘The Government did not make any attempt to challenge these propositions. Instead it founded its defence to the application on certain special arrangements that it had made with the AU for the holding of the assembly in Johannesburg,’ Wallis JA said.

According to the judgment, the recently resigned director-general at the Department of Justice and Constitutional Development, Nonkululeko Sindane, said that after SA agreed to host the AU Summit in June 2015 it entered into an agreement (the hosting agreement) with the commission of the AU relating to the material and technical organisation of the various meetings that were to take place at the summit including the 25th Assembly of the AU. Based on this agreement, Ms Sindane said that President Al-Bashir had been invited to attend by the AU and not by the government. She then referred to art VIII of the hosting agreement, which was headed ‘Privileges and Immunities’, and read: ‘The Government shall afford the members of the Commission and Staff Members, delegates and other representatives of Inter-Governmental Organisations attending the Meetings the privileges and immunities set forth in Sections C and D, Article V and VI of the General Convention on the Privileges and Immunities of the OAU.’

Wallis JA said: ‘On this basis, and this basis alone, Ms Sindane claimed that the immunities and privileges referred to in Article VIII of the hosting agreement prevented the Government from arresting President Al-Bashir “during the duration of the Summit and an additional two days after the conclusion of the Summit”. The application was argued on this basis and the High Court quite correctly summarised the issue before it as being “whether a Cabinet resolution coupled with a Ministerial Notice are capable of suspending this country’s duty to arrest a head of state against whom the International Criminal Court (ICC) has issued arrest warrants for war crimes, crimes against humanity and genocide”.’

The judgment goes on to say that with the advent of new counsel, led by advocate Jeremy Gauntlett SC, an entirely different argument emerged in the application for leave to appeal to this court. It was now based on what were said to be the provisions of customary international law and the provisions of s 4(1)(a) of the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA), which reads: ‘(1) A head of state is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as –

(a) heads of state enjoy in accordance with the rules of customary international law …’.

Matters to be resolved

The SCA had to determine the following among others:

  • Did the departure of President Al-Bashir render the issues moot?
  • Should leave to appeal be granted?
  • Did art VIII of the hosting agreement, together with the ministerial proclamation, provide President Al-Bashir with such immunity, at least for so long as the proclamation was not set aside?
  • If not, was President Al-Bashir entitled to immunity from arrest and surrender in terms of the arrest warrants issued by the ICC by virtue of customary international law and s 4(1) of DIPA?
  • If President Al-Bashir would ordinarily have been entitled to such immunity did the provisions of the Implementation Act remove that immunity?
  • If the appeal does not succeed, should the order stand or should it be varied in certain respects?

Is the appeal moot?

The High Court based its refusal of leave to appeal on s 16(2)(a)(i) of the Superior Courts Act, which provides that when at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the court may dismiss the appeal on that ground alone. The High Court reasoned that because President Al-Bashir had left the country the case no longer presented a live controversy.

‘It is correct that no present effect can be given to the order that the government take steps to prepare to arrest President Al-Bashir, because he is not in South Africa. But the order remains in existence and SALC indicated that any attempt by President Al-Bashir to return to this country would prompt it to seek its enforcement. As such the order had a continuing effect that would have to be taken into account by the government in the future conduct of its diplomatic relations,’ Wallis JA said. He added that in those circumstances the High Court erred in holding that there had ceased to be a live and justiciable controversy between the parties.

Should leave to appeal be granted?

According to the judgment, apart from its finding that the appeal had become moot the High Court also referred to s 17(1)(a)(i) of the Superior Courts Act and held that an appeal had no reasonable prospect of success. But in reaching that conclusion it did not consider the new basis on which the government sought to justify its opposition to SALC’s claim.

Article VIII of the hosting agreement

Wallis JA said that this was not only the principal, but also the only, argument advanced by government before the High Court. He added that his argument assumed secondary importance when the application for leave to appeal was brought.

Wallis JA found that there was no basis for saying that heads of state attending the Assembly were encompassed by the reference to delegates in art VIII of the hosting agreement. ‘The agreement was concluded between the AU and the South African government. There is nothing to indicate that the AU was representing the heads of state of member states or their delegations in concluding the agreement or was concerned with their entitlement to immunity when visiting South Africa. That was a matter for the diplomatic relationship between South Africa and other member states, not the AU. It is an agreement relating to the “material and technical organisation” of various meetings including the Assembly. It makes no reference to heads of state in any of its provisions,’ he states in his judgment.

He adds that the key words in art VIII are the ‘“delegates and other representatives of inter-governmental organisations attending the meetings.” That relates only to persons who are there because of their entitlement to be there on behalf of one or other inter-governmental organisation, not to those who are there on behalf of a member state.’

‘The necessary conclusion is that President Al-Bashir was not a person included in the reference to “delegates” in Article VIII.1 of the hosting agreement. As such the hosting agreement did not confer any immunity on President Al-Bashir …’ he said.

Conclusion

Wallis JA ruled that the appeal was dismissed. He added that the order of the High Court is varied to read as follows:

‘The conduct of the Respondents in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al-Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th Assembly of the African Union, was inconsistent with South Africa’s obligations in terms of the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful. The applicant is entitled to the costs of the application on a pro bono basis.’

 

 

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

 

This article was first published in De Rebus in 2016 (July) DR 56.