The scathing judgment by a Full Bench of the North Gauteng High Court in the ICC withdrawal case earlier this marks another stunning defeat for government, demonstrating that it does not take its constitutional obligations, the separation of powers and the rule of law seriously.
In Democratic Alliance v Minister of International Relations & Co-operation and Others the court found that government’s notice of withdrawal from the Rome Statute of the International Criminal Court (ICC) is unconstitutional and invalid, and ordered government to forthwith revoke that invalid notice of withdrawal.
The Minister of International Relations and Co-operation had on behalf of Government deposited a notice of South Africa’s intention to withdraw from the Rome Statute in October 2016, triggering the 12-month notice period for the withdrawal. This was done without the authority of Parliament and without repealing the Implementation of the Rome Statute of the International Criminal Court Act of 2002 (the Implementation Act). Having signed and ratified the Rome Statute, Parliament had also domesticated the obligations in terms of the Implementation Act. The Repeal Bill has recently, and belatedly, been tabled in Parliament.
At around the same time government had withdrawn its intended appeal to the Constitutional Court in the separate matter relating to its failure to effect the arrest of Omar al-Bashir, President of Sudan when he visited South Africa for the AU Summit in June 2015. He was wanted by the ICC for war crimes, crimes against humanity and genocide. The Supreme Court of Appeal (SCA) had found that government’s failure to arrest and detain al-Bashir was unlawful. Government’s strategy was to minimise the impact of their unlawful conduct in failing to arrest al-Bashir by avoiding the Constitutional Court and circumventing their culpability by withdrawing from the ICC.
The Democratic Alliance and the Council for the Advancement of the South African Constitution (CASAC) lodged urgent applications for direct access to the Constitutional Court to oppose this purported withdrawal by Government. Although the Constitutional declined direct access the matter was also placed before the High Court by the Democratic Alliance, with CASAC joining the case as an intervening party.
Government’s response to the litigation was found wanting in all respects by the High Court.
The court ruled that “it is Parliament which must approve an international agreement before it may bind South Africa. It follows that it must be Parliament which decides whether an international agreement ceases to bind the country before the executive may deliver a withdrawal of notice”, and later said: “If it is Parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national executive can unilaterally terminate such an agreement.”
The Court admonished the Minister of Justice for requesting Parliament to urgently consider the Implementation of the Rome Statute of the International Criminal Court Repeal Bill (the Repeal Bill) before the expiry of the 12-month notice period, saying that: “This in itself is impermissible, as it has the potential to undermine the process of Parliament.” It went further to state: “What is so pressing for the national executive about the withdrawal from the Rome Statute which cannot wait for our legislative processes (and possibly judicial pronouncements) to take their course?” The court found that this “unexplained haste” was irrational. It is nothing but a naked attempt to use Parliament to condone the illegal conduct of government in failing to arrest al-Bashir, conduct which was found wanting by the SCA.
In an interesting aside, the Court also entertained the notion that the repeal of the act may itself be unconstitutional, stating: “That is not an unreasonable forecast, due to the importance of the matter to the country … given the issues it raises.” The court did not however deal with these substantive grounds of the legal challenge.
It does now mean that the process of public consultation and participation which Parliament is obliged to undertake in dealing with the Repeal Bill opens up the opportunity for these substantive issues to be tabled and aired.
CASAC had argued that the decision to withdraw from the Rome Statute is inconsistent with our obligations in three respects:
- In terms of s. 7(2) of the Constitution which provides that “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”;
- that the obligations on South Africa under the Rome Statute exist anyway in terms of our Constitution read in conjunction with customary international law; and
- that the withdrawal from the ICC serves no legitimate government purpose.
These grounds will be foreshadowed in our submissions to Parliament on the Repeal Bill which we will make shortly.
It is to be hoped that all South Africans and members of Parliament engage robustly with the Repeal Bill and ensure that our commitments to fundamental human rights and in particular to act against genocide, war crimes, and crimes against humanity, including apartheid, are respected and indeed prioritised. These are the values that underpin our Constitution – we undermine them at our peril. DM
Lawson Naidoo is Executive Secretary of the Council for the Advancement of the South African Constitution (CASAC)