Cape Town — President Omar al-Bashir of Sudan flew out of South Africa on Monday, hours before a court ordered his arrest on the charges of genocide, war crimes and crimes against humanity he faces at the International Criminal Court (ICC).
Bashir fled, with the apparent connivance of agencies of the South African government, in defiance of a court directive that he remain in the country pending the outcome of the court application. He was in South Africa for a summit of the African Union (AU).
His departure was reported by a journalist while the court was sitting on Monday morning, but a government lawyer told the judges that to the best of his knowledge, Bashir was still in the country. However, immediately after the court issued its order, the same lawyer rose to announce that he had been informed by the government that Bashir had left.
The top judge of the province where the hearing was held, Gauteng Judge President Duncan Mlambo, ordered the government to produce an affidavit disclosing when and where Bashir had left. The civil society legal team which brought the application for Bashir's arrest also indicated that it wanted to know who had allowed him to leave.
On Sunday, one of the judges who heard the case ordered that an interim directive prohibiting Bashir's departure should be served on all border posts. He did so despite government protestations that it might not be possible to serve the order on all the posts. On Monday, the government lawyer, William Mokhari SC, said he did not have proof of service on five border posts.
Bashir left the country from the Waterkloof Air Base outside Pretoria, which is controlled by the military. His aircraft was moved there on Sunday afternoon from the international airport outside Johannesburg. Mokhari did not initially disclose the five border posts for which there was no proof of service, but he later assured the court that officials at the air base knew of the order.
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The reporter who broke the story of his departure said he was accompanied by a South African police escort. Both the police minister and commissioner were named in the interim order prohibiting Bashir's departure.
Full reasons for the order to detain Bashir will be handed down later. However, Mlambo said the South African government's actions had been "inconsistent with the Constitution."
The government had argued before the court that a Cabinet decision taken ahead of the AU summit granted Bashir immunity from arrest. A senior South African government source told a journalist on Sunday that the cabinet decision "will trump the ICC arrest warrant at the end of the day."
However, constitutional lawyers have for some time dismissed this argument against enforcement of ICC orders as weak in law, and it was quickly dismissed by a full bench of the High Court on Monday. The government's resort to subterfuge indicates that it was not confident the argument would prevail, at least at this stage of proceedings.
