Cabinet right to make ICC decision without Parliament - Masutha

2016-11-04 07:06
Minister of Justice and Correctional Services Michael Masutha. (File)

Minister of Justice and Correctional Services Michael Masutha. (File) ( Linda Mthombeni)

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Cape Town - Justice Minister Michael Masutha has told MPs that both international law and the Constitution gave Cabinet the right to withdraw from the ICC without Parliament's approval.

MPs and Masutha debated the government's decision to withdraw as signatories of the Rome Statute in the National Assembly on Thursday.

Masutha said section 231 of the Constitution gave the executive the responsibility of negotiating and signing international agreements.

"It is for that reason, that before Parliament considers a bill, the executive determines policy, introduces the bill, and only then Parliament is seized with the matter.

"Show me one international agreement that was negotiated here first and only then submitted to the Executive?

"In terms of which provision of the Constitution or any other law are you asking us to approach Parliament first, and seek Parliamentary concurrence first?"

He accused opposition parties of "changing the rules mid-stream".

He also said the House had debated the issue on two prior occasions, and therefore MPs were aware of the executive's intentions.


READ: DA to go to court over ICC withdrawal

Opposition MPs disagreed with Masutha, saying Parliament needed to repeal the enabling legislation first before Cabinet could make a policy decision.

"Do you understand the concept of the separation of powers? The repeal of legislation ultimately lies with this House and not with the Executive," Democratic Alliance MP Werner Horn said.

Horn questioned Masutha's rationale that there was a conflict between customary AU law to grant heads of state immunity, and South Africa's obligations to the Rome Statute and the ICC.

"The fact is: The Supreme Court of Appeal has clearly illustrated that there is no conflict. Our obligations to the Rome Statute must come first."

He also said the AU's proposal for an African court had only been ratified by half the countries on the continent, and was not ready to replace the ICC.

United Democratic Movement Chief Whip Nqabayomzi Kwankwa said the UDM agreed in principle with some of the reasons for withdrawing, but wanted to know what Cabinet's rush was in making the decision.

He said government should have sought to transform the ICC first, and that withdrawal should have been a last resort.

EFF 'suspicious' of ICC

The Economic Freedom Fighters which previously seemed to change their tune on the withdrawal, said that the party treated the ICC "with suspicion" in its current form.

"The ICC has shown bias and underhandedness in the manner they select which cases they try. Africa is a soft target for this judiciary body," EFF MP Sam Matiase said.

Matiase though was concerned that the ANC "made a unilateral decision" without consulting Parliament or the judiciary, and should have asked for a referendum.

"While the ICC is not the best body to fill this space, it is irresponsible of the government to withdraw from it, thus placing itself under no oversight whatsoever."

National Freedom Party MP Sibusiso Mncwabe said the party agreed with the ANC's decision, saying an African court will be better placed to try African heads of state.

Masutha said a bill will be tabled before Parliament in due course to effect its withdrawal. The withdrawal will be complete within 12 months of the ICC receiving notice from the government.

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Read more on:    international criminal court  |  nfp  |  da  |  anc  |  eff  |  icc  |  michael masutha  |  parliament 2016

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