The CFCR also welcomes a request by the Court to the National Director of Public Prosecutions (NDPP) to consider whether it would be appropriate to institute criminal proceedings against individuals responsible for the non-compliance with the Court’s earlier order, which required President al-Bashir to be prevented from leaving South African territory. Citing the Constitutional Court, the Court stated that a democratic state based on the Rule of Law cannot exist if the government disrespects the Judiciary and fails to abide by court orders.
The Court reiterated the importance and binding nature of International Law in our constitutional dispensation and emphasised the importance of abiding by obligations flowing from International Law. The judgment reaffirmed the National Executive’s constitutional duty to act, without exception, in accordance with the Constitution, its own legislation and International Law, regardless of any policy consideration. It also reiterated the need for the National Executive to respect and abide by the orders of the Judiciary as a fundamental principle of the Rule of Law. Moreover, the Court emphasised that neither the President nor any Minister, whether individually or jointly as the Cabinet, has discretion whether or not to abide by their constitutional obligations, including their duty to adhere to orders handed down by the Judiciary.
Our constitutional democracy is founded on the supremacy of the Constitution and the Rule of Law. Accordingly, the Constitution is the supreme law in South Africa and any conduct inconsistent with it is invalid. Moreover, all obligations imposed by it must be implemented. In this instance, the Court held that, apart from the government’s failure to adhere to constitutional obligations, there were clear indications that the government failed to comply with an explicit order of the Court. As such, the government’s apparent disregard for an order made by the Court in this case, together with recent outright attacks on the Judiciary by senior members of the governing party, raise serious questions about the state of the Rule of Law in South Africa.
By Adv Johan Kruger, Director: Centre for Constitutional Rights