The CFCR also notes with great concern the government’s clear violation of the Court’s earlier order requiring it to prohibit President al-Bashir from leaving South African territory. The government’s apparent disregard for an order made by the Court raises serious questions about the National Executive’s ability to effect control over government departments on the one hand, and its respect for the Rule of Law and the judiciary on the other.

The South African government has a constitutional obligation to act in accordance with the Constitution and the law – including its international obligations – and failed to do so. Considering comments not only by the Court, but also from UN Secretary-General, Ban Ki-moon, and the International Criminal Court (ICC) itself, the South African government now finds itself on the wrong side of the Constitution and International Law – a far cry from its commitment, reiterated in the preamble to the Implementation of the Rome Statute of the International Criminal Court Act, to bring “persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute…or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the [ICC]”.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

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