SA’s withdrawal from ICC ‘unconstitutional and invalid’ – court

The South African government has again found itself with egg on its face after a Full Bench of the High Court in Pretoria found its notice of withdrawal from the Rome Statute of the International Criminal Court procedurally invalid and unconstitutional on Wednesday.

The three judges also found the cabinet’s decision to deliver the notice to the International Criminal Court (ICC) without parliament’s approval invalid and unconstitutional.

The court ordered President Jacob Zuma‚ International Relations and Cooperation Minister Maite Nkoana-Mashabane as well as Justice and Correctional Services Minister Michael Masutha to revoke the notice of withdrawal.

Deputy Judge President Phineas Mojapela said: “There is prematurity and procedural irrationality in the notice to withdraw from the Rome Statute by [the] executive without parliamentary approval.”

He said the haste with which the process had been conducted constituted procedural irrationality.

The Democratic Alliance  (DA) approached the court last year to challenge the government’s decision to withdraw from the ICC by notifying the UN of its intention to revoke its ratification of the Rome Statute‚ which established the ICC.

On October 21 2016, Masutha announced that South Africa had initiated the process of withdrawing from the ICC.

The decision followed several court judgments that the state violated the law by not arresting Sudanese President Omar al-Bashir‚ who has been indicted by the ICC‚ during his visit to South Africa in June 2015.

DA federal executive chairperson James Selfe said his party was delighted by the judgment‚ saying it believed all along the decision was irrational and unconstitutional.

“We have been vindicated by the court. It is quite clear from the court’s judgment that the withdrawal in such haste had everything to do with the fact that the government is embarrassed by the fact that it has lost two court cases around the validity of their actions in the in the Al-Bashir matter and they took the easy option which was simply to withdraw from the ICC‚” he said after the ruling.

Selfe said the DA hoped the ruling created the opportunity for the government to reconsider the decision and for it to come back to parliament with a more considered approach to the question of the withdrawal.

“We hope this judgment creates a breathing space for the government to go back to the drawing board‚” he said.
Selfe said if the government appealed against the ruling‚ the DA would oppose it‚ but it was hoped there would be no further waste of taxpayers’ money.

“It is inexplicable for a political party that was at the forefront of fighting for human rights during the armed struggle should find itself in a situation where it defends people who have been found guilty‚ or at least charged with gross human rights abuses and genocide. We believe that we have completely lost our moral compass as a country‚ we have completely abdicated what Madiba stood for‚” he said.

The government was also ordered to pay the costs of the applicants‚ including the costs of two senior counsel.

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