The government was handed another rebuke from the High Court in Pretoria on Wednesday when it was ordered to revoke its notice to withdraw from the Rome Statute, which had established the International Criminal Court (ICC).
A full bench of the court ruled that the notice, signed by International Relations and Co-operation Minister Maite Nkoana-Mashabane in October 2016 without prior approval from Parliament, was “unconstitutional and invalid”.
The court found that the government was in breach of the doctrine of separation of powers by not getting Parliament’s approval for the withdrawal and breached section 231 of the Constitution, which deals with international agreements.
Section 231 does not outline how SA should deal with withdrawal from international treaties, but the court found the same process that was followed when deciding to sign a treaty had to be used.
“The inescapable conclusion must, therefore, be that the notice of withdrawal requires the imprimatur of Parliament before it is delivered to the UN,” Deputy Judge President Phineas Mojapelo said.
The government said it would reflect on the judgment.
In January Parliament’s justice committee began considering legislation to effect the withdrawal in the form of the International Criminal Court Act Repeal Bill. Wednesday’s judgment does not affect the validity of the tabling of the repeal bill.
Shortly before the court’s judgment was handed down, the portfolio committee invited the public and stakeholders to make written submissions on the repeal bill by March 8.
SA fell foul of the ICC in 2015 when it refused to detain Sudan’s President Omar al-Bashir, who is wanted by the court for war crimes, when he was in the country for an AU summit. SA was obliged, as a signatory to the Rome Statute, to arrest Bashir.
The government ignored an interim order from the high court stating that Bashir had to remain in the country. In a later ruling the same court condemned the state’s handling of the saga and ruled against it. It appealed to the Supreme Court but withdrew the application.
The decision to withdraw from the ICC was met with an outcry and was immediately and urgently challenged in court by the DA, supported by nongovernmental organisations.
The DA said the court’s judgment vindicated the party, which from the beginning believed that the government’s decision to withdraw from the ICC was unconstitutional.
“It is quite clear from the court judgment that the withdrawal with such haste had everything to do with the fact that the government was embarrassed that it had lost two court cases around the validity of its actions in the Bashir matter,” DA federal executive chair James Selfe said.
Nicki van’t Riet of Norton Rose Fulbright, who represented the Council for the Advancement of the South African Constitution, said her client was “delighted” with
The ANC could not be reached for comment.