Masutha: Courts won’t dictate to us on ICC withdrawal

Justice and Correctional Services Minister Michael Masutha. Picture: Lindile Mbontsi
Justice and Correctional Services Minister Michael Masutha. Picture: Lindile Mbontsi

ANC MPs clashed with their opposition counterparts in Parliament yesterday over the failure of President Jacob Zuma’s executive to consult the legislature before withdrawing from the International Criminal Court (ICC).

The governing party MPs stood with the executive saying it had an exclusive jurisdiction on international policy and did not need to consult anyone in withdrawing the country from the international tribunal.

The Department of Justice and Constitutional Development was briefing Parliament’s portfolio committee on justice about the implementation of the Rome Statute of the International Criminal Court Repeal Bill.

Justice and Correctional Services Minister Michael Masutha agreed that ultimately the authority to decide on international policy for the country is an exclusive executive prerogative in terms of the Constitution.

“I cannot see how a court can dictate – either to the executive or this Parliament – choices imposed by those who have the privilege to approach court because they can,” he said.

“I think this Parliament and government must assert their constitutional powers and rights for the good of the people of this country,” he added.

The Southern Africa Litigation Centre, a non-governmental organisation, took the government to court in June 2015 demanding that the government effect an arrest on Sudanese president Omar al Bashir who had been indicted by the ICC for war crimes, crimes against humanity and genocide against the people of the Darfur region in Sudan.

Masutha dared the opposition MPs to give him an example in modern history where a sitting head of state was indicted and put to stand trial under international or domestic law.

“What we were being asked to do – for South Africa to be a guinea pig using the ICC to effect induced regime change through external means to the normal diplomatic process of another nation.”

Masutha said all the people who went before the ICC or had been before any other international tribunal were subjected to such proceedings after and not during their stints in government.

He said this was because “if you indict a sitting president of another country, you are effectively indicting that state itself ...”

Masutha said when he and International Relations Minister Maite Nkoana Mashabane went to the Assembly of States Parties (ASP) in 2015 and approached the ICC to have a debate on the issue of diplomatic immunity – which he said was hindered by the Rome statute – their proposal was rejected off hand.

Steve Swart of the African Christian Democratic Party, who was part of the justice committee that approved the Rome Statute, was not convinced by the government’s move.

“Let it be remembered that South Africa led the delegation to Rome and was part of the promotion of the Act,” he said.

“I was asked to go to New Zealand with members of the majority party where we were again lauded for our role in helping the Rome Statute and the ICC to be implemented and encouraging other countries to join.

“And South Africa played a key role in standing against the USA when the USA wanted to have a less independent court and have one more bound to the security council. It’s very sad that we today are sitting with this situation,” he said.

Swart said Masutha’s explanation about the decision to withdraw “doesn’t wash” because there were two warrants against Al Bashir before.

“In 2009, when we had an inauguration, Al Bashir was warned not to come. “In 2010 again, for the soccer World Cup, he was advised quietly again not to come or we will have to arrest you.

“It’s sad that we are sitting here when President Mbeki himself in the AU high level panel on Darfur said Darfurians deserve attention not because of the threats of international action but because they have a right to justice on the account of what they suffered.

“It’s clear that we are losing the high moral ground when it comes to these issues,” he added.

The DA’s Werner Horn said the government was putting the cart before the horse in the whole ICC affair.

“I noted with interest that the minister said Parliament and this committee (must move) ... to legitimise the decision of government to withdraw from the ICC.”

Horn also said it was odd that Masutha who generally took a “cautionary approach” when matters were pending before the courts was taking a different approach on this matter.

ANC MPs begged to differ.

“We are told that (the reason) African leaders are prosecuted by the ICC is because matters are brought by Africans themselves to the court, but does this mean human rights abuses only occur in Africa? It can’t be,” said Moloko Maila of the ANC.

He cited “the Palestinian situation” which has been ongoing from 1949 as an example that “this very court can never say anything about human rights abuses in that particular area”.

“As this Parliament we domesticated the Rome Statute and there is no law that bars us from repealing those statutes; it is within our rights.”

Maila urged his colleagues in the committee to continue with the process of repealing the Rome Statute, adding “the rest will follow”.

Another ANC MP, Loyiso Mpumlwana, added: “This is very clear, the executive is authorised by the Constitution to make treaties ... and it’s authorised, by implication, by the Constitution to move away from certain treaties when it feels so.”

Mpumlwana said the executive didn’t have to consult Parliament about the decision to withdraw, as it never consults Parliament with all the (other) treaties.

“Unless we change the Constitution, it is the prerogative of the executive to do so. We will repeal, we made it, now we will repeal. Let us not get into the whys,” he added.

Bongani Bongo, also from the ANC, said it was important to consider issues of national interest as these linked to promotion of dialogue and peace in the continent.

“Let’s say if we agreed to arrest Omar Al Bashir; what would have happened to our relationship with the other African people? What was to happen?”

Masutha tabled the Bill to repeal South Africa’s membership of the ICC – which he said clashes with diplomatic immunity laws – in November last year.

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