Update: South Africa court hearing on Al Bashir’s arrest postponed

President Omar Al Bashir's presence in Johannesburg overshadows the 25^th African Union summit and puts South Africa's justice system in the spotlight. The Pretorian High Court issued an interim order today (Sunday), preventing the President of Sudan – who is wanted by the international justice court – from leaving South Africa until the issue of his international arrest warrant is settled. Meanwhile, a news outlet reports that Al Bashir already left South Africa on Sunday evening.

An application lodged by the human rights group Southern Africa Litigation Centre (SALC) was set to be heard in the Pretoria High Court at 3pm local time on Sunday, to decide whether Al Bashir should be arrested. But the SALC has asked the court to postpone the hearing to Monday morning, in order to prepare their defence arguments. The group did manage to communicate the court order to officials at ports of exit, a SALC lawyer told News24.

Meanwhile, the high court has asked the South African government to clarify if the cabinet can override an international treaty. South Africa is a state member of the Rome Statute, and is therefore obliged to comply with arrest warrants issued by the International Criminal Court (ICC) based in the Hague. As one of the African Union state members, the continental union also expects South Africa to comply with the union's resolution: to not cooperate with the ICC in executing the arrest warrant.

During the opening session on Sunday, AU Commission Chairperson Nkosazana Dlamini-Zuma congratulated Al Bashir with his re-election in April this year. This year's summit is themed 'Year of Women Empowerment and Development' and shall continue up to Monday 15 June.

The ICC issued an arrest warrant in 2009, accusing President Al Bashir of war crimes and crimes against humanity related to the conflict in Darfur. Member states of the ICC, including South Africa, are obliged to comply with the founding act of the court (the Rome Statute) and any arrest warrants. The ICC urged South Africa to “spare no effort in ensuring the execution of the arrest warrants” in a statement on Saturday.

Contradicting ministers' statements about Bashir's whereabouts

A Sudanese Foreign Ministry official told AFP that President Omar Al Bashir will return home when the main AU summit is over, today or tomorrow. Information Minister Ahmed Bilal Osman contradicts the statement, telling Bloomberg media today that “the president has finished his business in South Africa and is coming back home”. This while the Pretoria court ordered that South Africa prevents the Sudanese president from leaving the country.

"South Africa now finds itself in a pickle."

The rebel Sudan People’s Liberation Movement-North (SPLM-N) has also urged the South African authorities to arrest Al Bashir. "South Africa is one of the Rome Statute signatories and is bound to arrest those who are wanted by the international justice," said the SPLM-N secretary general Yasir Arman in a statement extended to Sudan Tribune on Saturday.

Elise Keppler, acting international justice director at New-York based advocacy group Human Rights Watch, said in a statement on Friday: "Allowing President Al Bashir into South Africa without arresting him would be a major stain on South Africa's reputation on promoting justice for grave crimes."

Following his elections in May 2009, South Africa's president Jacob Zuma said that if Al Bashir was to ever set foot inside South Africa he would order him arrested. South Africa’s move to receive Al Bashir contrasted sharply with this public position.

No cooperation from AU

Sivu Maqungo, Rome Treaty Advocate in an interview with ANN7 Sunday night, pointed to the independence of the high court that issued an order banning Al Bashir from leaving the country. South Africa now finds itself in a pickle, Maqungo said, because it continued to invite Al Bashir to attend the AU summit, while it was known that his safety from the international arrest warrant was not guaranteed with the independent judicial system in the country.

An African Union (AU) summit held in Libya in July 2009, however, adopted a resolution that they shall not cooperate with the ICC in executing the warrant. The union has criticised the ICC before of bias and issuing arrest warrants only against Africans.

Asked about the speculations that Al Bashir might leave South Africa tonight, advocate Maqungo said that those responsible "will probably look the other way", claiming that this would save the government from the difficult situation it is currently in.

Since the arrest warrant was issued, most of Al Bashir's trips abroad have been to non-ICC states such as Saudi Arabia and Egypt. But he has also been to member states that have declined to arrest him, such as Nigeria, which hosted him in July 2013.

(Al Jazeera, Sudan Tribune)