As President Obama jets into South Africa for his much-anticipated
visit he can rest easy in the knowledge that he will not be arrested and
prosecuted for international crimes in terms of the ‘Obama Docket’ (in case he
was worried). The reason being that its authors – the Muslim Lawyers
Association (MLA) – failed this week to convince a court to overrule last
week’s decision by South African authorities not to open an investigation into
the Obama Docket, which was submitted to them by the MLA on 5 June 2013.
In terms of that application, heard by the North Gauteng High
Court on Tuesday and Wednesday of this week, the MLA requested that the court, inter alia:
- Declare that the decision taken last week by the National
Commissioner of Police not to accede to the MLA request to open an
investigation under South Africa's ICC Act and customary international law, and
if needs be arrest President Obama, unlawful and unconstitutional.
- In light of the above, direct the relevant police apparatus to
undertake “the necessary expeditious and comprehensive investigation of the
crimes alleged in the Obama docket, with the assistance of the National
Director Of Public Prosecutions and the specialised international crimes unit.
- Order the National Director of Public Prosecution, once the investigation
is completed, to take a decision whether or not to institute a prosecution.
- Declare that any “immunity from investigation and prosecution
under the ICC act and treaty is set aside”.
- In the alternative, direct the relevant authorities after the completion
of the investigation to make a decision “whether or not to refer the …Obama
docket to the Prosecutor of the International Criminal Court to exercise
jurisdiction in accordance with Article 13 and 14 of the Rome Statute of the
International Criminal Court”.
The reason that the court dismissed the MLA application has little
to do with the substance of the Obama Docket. Rather, it was the MLA’s failure
to convince the court of the urgency of the matter that led to its demise.
However, the arguments raised by the MLA in its filings, and the responses
thereto by the government, make for very interesting reading. I will discuss
these arguments in detail in a follow-up post.
Suffice it to say for now that Air Force One is clear to land.