SA Government fail to arrest President Omar al-Bashir, President of Sudan for crimes against humanity

The Commonwealth Legal Education Association (CLEA), the Commonwealth Lawyers Association (CLA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are concerned that the South African Government ignored a North Gauteng High Court interim order preventing President Omar al-Bashir of Sudan who is wanted for crimes against humanity from leaving the country with the result that awarrant for his arrest issued by the International Criminal Court (ICC) could not be executed.

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The South African Government has signed and ratified the Rome Statute creating the ICC and has domesticated the Rome Statute into its national legislation as required by the Constitution. The Government was therefore legally bound to execute the arrest warrant for President al-Bashir issued by the ICC as held by the High Court of South Africa in its judgement of 23 June 2015.
By virtue of its membership of the Commonwealth, South Africa is committed to the shared fundamental values and principles of the Commonwealth, at the core of which is a shared belief in, and adherence to, democratic principles including respect for the authority of an independent and impartial judiciary. Any measure on the part of the Executive which is capable of being seen as eroding the authority and independence of the judiciary, is a matter of serious concern. As the High Court Judgement of 23 June 2015 provides: “…. there are clear indications that the order of Sunday 14 June 2015 was not complied with. It is in this reason that we are moved to state that:

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”.

The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003) state: ‘Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity.

The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies.’
The CLEA, the CLA and the CMJA urge the Government of South Africa to respect the Constitution regarding its constitutional and international obligations and to desist from undermining the authority of the judiciary and the courts whose decisions are binding on all persons and organs of the state.

Commonwealth Legal Education Association (CLEA)
Commonwealth Lawyers Association (CLA)
Commonwealth Magistrates’ and Judges’ Association (CMJA)

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