The Southern Africa Litigation Centre
The Southern Africa Litigation Centre (SALC) is a Johannesburg based non-governmental organisation that provides technical and monetary assistance to local lawyers and community organisations to pursue strategic litigation on human rights or the rule of law in domestic and regional jurisdictions. SALC supports its partners in a variety of ways, including providing legal research, drafting heads of argument, training, mentoring and monetary support. While SALC aims primarily to provide support on a specific case-by-case basis, its objectives also include the provision of training and the facilitation of legal networks within the region.
SALC works in the following countries: Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe.
SALC’s mandate is to strengthen human rights and protect the rule of law. SALC operates in the following programme areas: Health Rights, Sexual and Reproductive Rights, Women’s Land and Property Rights, International Criminal Justice, Freedom of Expression, Disability rights, Prisoners’ Rights and the Rights of LBGTI persons and sex workers and Access to Justice. It has a strong regional advocacy component over all focus areas.
SALC’s International Criminal Justice work is highlighted in this piece.
SALC’s international criminal justice programme seeks to ensure that states in Southern Africa adhere to their domestic and international law obligations to curb the commission of international crimes and to fight impunity. It is within this context that the case of Southern Africa Litigation Centre v The Minister of Justice and others was pursued.
SALC sought the implementation of an arrest warrant for Sudan’s President Omar Al-Bashir who arrived in South Africa for the African Union (AU) summit that took place in Johannesburg from 7-15 June 2015.
President Al-Bashir is wanted by the International Criminal Court (ICC) for war crimes, crimes against humanity and genocide allegedly committed in Darfur after a 2003 insurgency. As a signatory to the Rome Statute and having domesticated the Statute, in the form of the Implementation of the Rome Statute of the International Criminal Court Act (Implementation Act), South Africa is obligated to arrest President Al-Bashir if he is found on South African territory.
After hearing of his arrival in South Africa and the fact that he was not immediately arrested, SALC approached the North Gauteng High Court seeking the implementation of the ICC arrest warrant. SALC was ably and swiftly assisted by Webber Wentzel partner and head of the pro bono practice, Moray Hathorn and Advocate Isabel Goodman who represented SALC in the High Court, both acting on a pro bono basis. The court issued an interim order on 14 June 2015 preventing President Al-Bashir from leaving the country pending the finalisation of the matter which was set down for hearing on 15 June 2015.
The Court reconvened on 15 June 2015 and after hearing submissions from all the parties, it ordered that President Al-Bashir be arrested and detained for subsequent transfer to The Hague.
After handing down this order, the Court was informed by the state respondents that President Al-Bashir had already left the republic in direct contravention of the interim court order issued on 14 June 2015. The court then requested that the state submit an affidavit explaining how President Al-Bashir was allowed to leave the country.
The state submitted its explanatory affidavit and subsequently filed for leave to appeal the High Court judgment. The application for leave to appeal was heard on Friday 14 August 2015 where the state submitted that President Al-Bashir, as a head of state, was entitled to head of state immunity. At this point in proceedings SALC’s legal team was augmented by the work of Advocate Max du Plessis and Advocate Wim Trengove SC.
On 16 September 2015 the North Gauteng High Court denied the state leave to appeal, indicating that the issue was moot, and that there were no prospects of success on appeal. The state petitioned the Supreme Court of Appeal and the matter was heard on 12 February 2016. Before the Supreme Court of Appeal, the state persisted with arguments pertaining to immunity and SALC continued to focus on the obligations set out in the Implementation Act and the Rome Statute.
On 15 March 2016 the Supreme Court of Appeal ruled that the government’s failure to arrest President Al-Bashir was unlawful and dismissed their application for leave to appeal with costs.
This case demonstrates the importance of international criminal law in the fight against impunity. It also underscores the importance of ensuring that South Africa does not become a safe haven for suspected perpetrators of egregious crimes. The case sets a precedent that will inform the international discussion on immunity and impunity and also shows the crucial role that timely and effective litigation can play when seeking accountability.
On 8 April 2016 the government applied for leave to appeal to the Constitutional Court and the Constitutional Court is yet to advise as to whether it will hear the matter.