The South Africa Department of Justice (DOJ) [official website] on Friday filed for leave to appeal the unfavorable judgment [text, PDF] of the Supreme Court of Appeal (SCA) [official website] concerning the government’s failure to detain Sudan President Omar al-Bashir [JURIST report] despite an outstanding high court order barring him from leaving the country. However, DOJ spokesman Mthunzi Mhaga expressed his belief that the Constitutional Court [official website] of South Africa is likely to arrive at a different conclusion than that reached by the SCA and that interpretation of legislation concerning head of state foreign immunity matters must be pronounced by the highest court. In its March 15 judgment, the SCA stated that the government’s failure to arrest and detain Sudan President Omar al-Bashir for surrender to the International Criminal Court (ICC) [official website] was inconsistent with South Africa’s obligations under the Rome Statute as well as under section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002‚ and was therefore unlawful. Al-Bashir arrived in South Africa in June of last year to attend the African Union Summit in spite of an outstanding arrest warrant looming over his head to try him for alleged war crimes. On the question of head of state immunity under the Diplomatic Immunities and Privileges Act, Judge Malcolm Wallis in the SCA stated that the Implementation Act passed by South Africa removed any hurdles the government could have potentially faced in cooperating with the ICC. In other words, according to the SCA, there was no bar in this case for the government in arresting and detaining Al-Bashir and its failure to do so is a violation of the constitution.

In September the ICC requested [JURIST report] that South Africa provide an explanation for the country’s failure to arrest Bashir when he was in the country last June. During Bashir’s visit a judge for South Africa’s high court issued an order [JURIST report] barring him from leaving the country. Last March the ICC requested assistance [JURIST report] from the Security Council in affecting the arrest of Bashir. In asking the Council to take “necessary measures” to force Sudan to comply with the ICC investigation, the court noted that without such assistance, the Council’s decision to request investigation into Bashir in 2005 would “never achieve its ultimate goal.” In February of last year African leaders urged [JURIST report] the ICC to drop cases against Bashir and Kenyan Deputy President William Ruto or suspend the charges until African concerns are considered by the court. In December 2014 ICC Chief Prosecutor Fatou Bensouda [official profile] told the Security Council that her office was dropping further investigation [JURIST report] into the situation in Darfur.