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DA attempt to impeach president defeated in Parliament

A resolution by the leader of the Democratic Alliance‚ Mmusi Maine regarding the establishment of an ad hoc committee to enquire whether President Jacob Zuma should be removed from office for allowing Sudanese President Omar al-Bashir leave South Africa was defeated in Parliament on Tuesday.

On August 4‚ the DA said it had given notice in the National Assembly of a motion of impeachment against President Jacob Zuma‚ as the supremacy of the Constitution and respect for the rule of law “were directly contravened by the executive‚ under the leadership of President Jacob Zuma‚ when they facilitated the escape of Sudanese President Omar al-Bashir from South Africa on 15 June” .

Maimane had said that the events that led to the escape of al-Bashir represented “a clear violation of the president’s oath to ‘obey‚ observe‚ uphold and maintain the Constitution and all other law of the Republic’‚ and serve as nothing less than grounds for his removal from office in terms of section 89(1)(a) of the Constitution”.

Maimane said al-Bashir was wanted by the International Criminal Court (ICC)‚ under two warrants issued in 2009 and 2010 respectively‚ for war crimes‚ crimes against humanity and genocide.

As a signatory to the Rome Statute that established the ICC‚ enacted into domestic law through the Implementation of the Rome Statute of the International Criminal Court Act of 2002‚ the South African government had a legal obligation under both international and domestic law to arrest al-Bashir.

“The decision to allow al-Bashir to escape was also made in contravention the two High Court orders. On 15 June the North Gauteng High Court found that the failure to arrest al-Bashir was inconsistent with the Constitution of the Republic and that he should not have been allowed to leave.

By ignoring these rulings‚ the executive undermined the independence and authority of the judiciary as a separate branch of the state in terms of section 165 of the Constitution‚” Maimane said at the time.

In his speech in the debate on Tuesday‚ Deputy Minister of Justice and Constitutional Development John Jeffery said the “shortcomings of this motion are quite obvious” as the matter was currently before the court”.

He said the African National Congress’ (ANC’s) argument‚ related to the interpretation of the Implementation of the Rome Statute of the International Criminal Court Act and the Immunities Act.

“We argued that the court should have held that immunity precludes the endorsement of a warrant. Alternatively‚ the court should have held that section 8 of the Implementation Act only imposes a duty to endorse a warrant of arrest for execution‚ but — for as long as the person to whom the warrant relates enjoys immunity — does not impose a duty to execute the warrant.

“This is a legal question — and one which is up to the court to determine. Only a court — and not the honourable Maimane — can decide whether or not we are in contempt of court.”

Jeffery said that‚ as he had already explained‚ the impact of South Africa arresting president al-Bashir or even preventing him from leaving “would have imperilled our bilateral relations with Sudan‚ the African Union (AU) and other states on the continent”.

He said president al-Bashir had been in South Africa at the invitation of the AU for the AU summit and therefore “we accepted that he had diplomatic immunity — on the same basis as to why the USA does not arrest foreign heads of state when they attend the UN General Assembly”.

In her remarks‚ Small Business Development Minister Lindiwe Zulu said that in terms of customary international law‚ sitting heads of states and government were accorded criminal and civil immunity in the domestic jurisdiction of another state‚ as well as inviolability of the person.

“In terms of Section 232 of the Constitution of the Republic of South Africa‚ 1996‚ customary international law is law in South Africa unless it is inconsistent with the Constitution or an act of Parliament. Furthermore‚ section 4 of the Diplomatic Immunities and Privileges Act specifically incorporates the customary international law rule pertaining to the immunities of sitting heads of state and government into South African domestic law.

“The International Court of Justice and other foreign jurisdictions have upheld the principle of immunity from criminal jurisdictions and inviolability of sitting heads of states‚” she said.

She said that “the complex issues in South African domestic law regarding the immunities and inviolability of a sitting president for whom the ICC has issued a warrant of arrest‚ have not been finally considered by the South African courts as the legal process has not been exhausted”.

“The high court is presently considering the government’s application for leave to appeal the decision of the high court on the matter of South Africa’s obligations in this regard. A number of procedural and legal grounds for appeal have been advanced in this regards.

“The outcomes of the appeal process‚ which may also reach the Constitutional Court‚ should not be pre-judged as they may ultimately result in a different decision.”

She said that the AU‚ as a regional body was not bound by the decisions of the ICC‚ while member states had taken a number of decisions which “explicitly state that member states shall not cooperate with the International Criminal Court”.

The DA motion was defeated when 211 MPs voted against it‚ with 100 voting for it and 17 MPs abstaining.