South Africa’s notice of withdrawal from the International Criminal Court (ICC) was unconstitutional and should be revoked immediately, the North Gauteng High Court ordered on Wednesday.
“The following order is made: the notice of withdrawal from the Rome Statute of the International Criminal Court filed by first respondent, minister of international relations and cooperation on 19 October 2016, without prior parliamentary approval is unconstitutional and invalid,” Deputy Judge President Phineas Mojapelo ruled on behalf of a full bench.
“The cabinet decision to deliver the notice of withdrawal to the United Nations Secretary General without prior parliamentary approval is unconstitutional and invalid. The first, second and third respondents [International Relations Minister Maite Nkoana-Mashabane, Justice Minister Michael Masutha and President Jacob Zuma] are ordered forthwith to revoke the notice of withdrawal.”
Mojapelo also said Zuma, Nkoana-Mashabane and Masutha must pay the legal costs of the applicant, the opposition Democratic Alliance, “including costs consequent upon employment of two counsel”.
The DA launched the court application, beseeching the court to invalidate South Africa’s withdrawal from the Rome Statute of the International Criminal Court, which had already been set in motion by the national executive.
For its part, the South African government, believed it was unfairly treated by the ICC when it consulted the court over the visit of Sudanese President Omar al Bashir in June 2015. Pretoria asked the ICC to exempt it from its requirement to arrest Bashir because, it said, he should enjoy immunity as a sitting head of state attending an African Union summit. But the ICC rejected this request and demanded that South Africa arrest Bashir, which it did not.
South Africa has complained that the ICC did not give it a fair hearing and that there was confusion within the court itself about the obligations of member states to arrest sitting heads of state of countries which are not members of the ICC – like Bashir.
In October last year, Masutha announced that the South African government had informed the United Nations of its intention to withdraw from the ICC. South Africa’s withdrawal from the international court which it helped found, was due to come into effect from October 19 2017.
On Wednesday, Mojapelo emphasised in the three judges’ ruling that it was not unconstitutional for South Africa to pull out of the ICC, but the judges had a gripe with the procedural process followed.
“Given that this court has refrained from expressing a view on the substantive policy by the national executive to withdraw from the Rome Statute, it follows that it would be inappropriate to declare that decision unconstitutional as a stand-alone decision. There is nothing patently unconstitutional, at least at this stage, about the national executive’s policy decision to withdraw from the Rome Statute, because it is within its powers and competence to make such a decision,” said Mojapelo.
“What is unconstitutional and invalid is the implementation of that decision [the delivery of the notice of withdrawal] without prior parliamentary approval. As a result, a declaration of invalidity of the notice of withdrawal, coupled with an order for the withdrawal of such a notice, should suffice as an effective, just and equitable remedy.”
The DA’s federal executive chairperson James Selfe said his organisation had been vindicated by the courts.
“We believed all along that the decision to withdraw from the ICC was irrational and unconstitutional. Now we have been vindicated by the court. It is quite clear from the court’s judgement that the withdrawal in such haste had everything to do with the fact that government was embarrassed after losing two court cases around the validity of their actions in the Al Bashir matter,” Selfe told journalists at the court.
– African News Agency (ANA)
