Al-Bashir and the Rule of Law in South Africa

The media’s take on the failure of South Africa’s Zuma government to hold Sudanese President al-Bashir is that it is a slap in the face of the International Criminal Court (ICC). The press drama is focused on al-Bashir and the credible charges of genocide that he faces before the ICC, and the many African objections to the way the court operates.

If less dramatic but of greater significance to the governance of South Africa, the Zuma administration’s connivance with al-Bashir to facilitate his departure flouts a South African high court decision that he could not leave the country pending further judicial review. The Zuma administration’s actions would appear to be in contempt of court and thereby a threat to the legal and constitutional basis of South African governance. The independence and integrity of the judiciary has been a bedrock of South African democracy based on the rule of law. Arguably, the administration’s actions challenge neither. What it did do, however, was challenge the authority of the high court.

South African law is clear. The Pretoria High Court is a superior court. A decision made by such a court may only be appealed to the Supreme Court of Appeal or even the Constitutional Court, both of which are primarily appellant courts. Absent such an appeal, the high court’s ruling stands. The Zuma government filed no appeal in the al-Bashir case.

The High Court was clear: South Africa is a signatory to the treaty establishing the ICC, and as there is an ICC order for al-Bashir’s arrest, the High Court directed that al-Bashir could not leave the country pending its ruling. Moreover, South Africa’s 2002 International Criminal Court Act created a domestic legal imperative for the country to comply with ICC arrest warrants. The ICC clarified and reiterated South Africa’s legal obligation to hold al-Bashir in an official decision issued on June 13.

The Zuma government apparently conspired to move al-Bashir’s private airplane from the Johannesburg civil airport to a military base near Pretoria, and then facilitated its departure from South Africa. Officials within the Zuma government would appear to be in contempt of court.

The official opposition, the Democratic Alliance (DA), has issued a strong statement condemning the Zuma government. It says that “The DA is in consultation with our lawyers as to what means we have at our disposal to ensure that the government not be allowed to sidestep accountability.” It also said, “We will pursue all avenues available to us to ensure that the  government is not allowed to blatantly disregard the laws of this country or its obligations under international law.” Civic organization have also raised the possibility of legal action against specific persons within the government for contempt of court.

The Zuma administration’s apparent contempt of court is only the most recent and most blatant of a string of actions that weaken the judiciary and other constitutional limits on the executive. How the DA and civil society respond in this instance will be an indication of the strength of popular support for the rule of law and whether the country’s legal and constitutional institutions are, indeed, under threat.