Interview: S. Africa not facing constitutional crisis: official

The South African government's failure to comply with a court order barring Sudanese President Omar al-Bashir from leaving the country has not thrown South Africa into a constitutional crisis, a government official said on Thursday.

Allegations that South Africa is now facing a constitutional crisis are incorrect, South African Deputy Minister of Justice and Constitutional Development, John Jeffery told Xinhua.

The International Criminal Court (ICC) issued an arrest warrant on al-Bashir for alleged genocide and crimes against humanity. South Africa, as a signatory to the Roman Statue that created the ICC, was legally bound to arrest him and hand him over to the ICC when he attended the African Union (AU) summit in Johannesburg in June.

During the summit, the High Court in Pretoria ordered that al- Bashir be barred from leaving South Africa. The court later ordered his arrest.

But the government let al-Bashir leave, claiming that his passport was not presented to immigration officers.

"It is not a constitutional crisis but a complex issue that requires clarity on the relationship between international law, domestic law and our regional obligations.

"The government did not ignore any court order and this is why we are now appealing the judgement that found the government to be on the wrong," said Jeffery.

The South African government acted correctly, Jeffery said, arguing that arresting al-Bashir would have had serious consequences for the country.

"We did not invite al-Bashir but he was attending an African Union summit and all those attending were granted immunity against prosecution.

"Had he been arrested there would have been severe consequences, " Jeffery said.

He insisted that South Africa has no intention of terminating its membership to the ICC but wants the organisation to reform in a way that it will not be seen to be targeting African leaders only.

Jeffery said, "South Africa is still committed to fulfilling its obligations to the ICC but we want the organisation to be reformed in a way that it will not be seen to be targeting African leaders only.

"If you had a court that only tried a particular group of people, there would be a problem and this is what the ICC has become."

However, Howard Varney, Senior Consultant at the International Centre for Transitional Justice in Johannesburg, disagreed. "We are facing a constitutional crisis because the government disregarded a court order in the matter of al-Bashir.

"There was intentional refusal to comply with the court order. If the law is ignored it becomes useless and that creates a crisis, " said Varney.

Varney said it is time for South Africa to decide what it wants to do. "South Africa has to decide if it wants to remain in the ICC or not," he said.

"If it wants to remain, then it should honour its legal obligations and if it no longer wants to be part of the ICC then it should pull out."

Varney, however, cautioned that if South Africa or any other African states decide to pull out, that would be a sad moment.

Varney said, "It would be very unfortunate for a country like South Africa and other African countries to pull out after playing such a critical role in setting up the ICC and enacting the Roman Statue.

"South Africa has always been a beacon of hope and inspiration to the rest of the world but if they have no intention to comply they should pull out and allow the court to continue with its business," he said.

However, Deputy Minister Jeffery said South Africa is still committed to honouring its international obligations including its commitments to the ICC.

He said the government believes that those who have committed crimes against humanity should be brought to book hence the country supports the idea of setting up an African Court, which will deal with such issues in a fair manner. Endi