If the government goes ahead with its withdrawal from the International Criminal Court (ICC) the ensuing process of legal challenges would be embarrassing for the country, the North Gauteng High Court said on Wednesday.
Delivering judgment on the Democratic Alliance’s application against the withdrawal, a full bench led by Deputy Judge President Phineas Mojapelo ordered the government to revoke its notice to withdraw with immediate effect.
The court ruled that the withdrawal was unconstitutional and invalid.
Spokesperson for the ministry of justice and correctional services, Mthunzi Mhaga, said on Wednesday that the government would reflect on the judgment before determining whether there were grounds for appeal.
On October 21, Justice Minister Michael Masutha told reporters that South Africa had initiated the process of withdrawing from the ICC by notifying the UN of its intention to revoke its ratification of the Rome Statute, the ICC's founding treaty.
It would take a year for the decision to come into effect.
The decision followed several court judgments that the government violated the law by not arresting Sudan President Omar al-Bashir during his visit to SA for an African Union summit.
The ICC had issued warrants for his arrest and wanted him to stand trial on charges of war crimes, crimes against humanity and genocide.
Mojapelo said on Wednesday that the national executive's primary reasons for delivering the notice of withdrawal ignores the effect of the Implementation of the Rome Statute of the International Criminal Court Act.
“It is domestic legislation which creates peremptory obligations which bind the State on their own terms, independent of its international obligations. In other words, South Africa's international law obligations are not dependent on the Rome Statute and vice versa,” Mojapelo said.
The government previously argued that its role within the Rome Statute impedes its diplomatic and peacekeeping efforts on the continent, as it is then required to arrest sitting heads of state against whom the ICC has issued warrants of arrest.
Government said withdrawing from the Rome Statute would give it freedom to pursue its role as peacemaker on the continent without the obligation to arrest the indicted heads of state. It would be free to give immunity to such leaders.
Mojapelo said that while internationally the ICC would give effect to the notice of withdrawal, domestically, government would be obliged to arrest and surrender the indicted leaders, as long as the Implementation Act is in force.
“It would not be permissible to grant the immunity it envisages. This would result in a state of affairs where the state incurs obligations domestically but not be party to the Rome Statute internationally.”
Undermining parliamentary processes
The government's argument that the notice of withdrawal does not take effect until October 2017, and that by that time the Implementation Act would have been repealed was also challenged by Mojapelo.
“This was stated almost as a matter of fact. Indeed, the minister of justice [Michael Masutha] stated that he had requested Parliament to urgently consider the repeal bill so that by October 2017, the Implementation Act would have been repealed.”
This in itself, Mojapelo found, was impermissible as it had the potential to undermine the processes of Parliament.
“Parliament is therefore the master of its own processes, and the national executive is not entitled to dictate time frames to it within which to consider any bill before it... Parliament has a very special role to play in our constitutional democracy.
"It is the principal legislative organ of the state. Parliament should therefore not be dictated to by the national executive to rush through the repeal bill in order to meet the national executive-created deadlines.”
He added that in keeping with the Constitution, President Jacob Zuma might refer the bill back to Parliament for reconsideration if he has reservations about its constitutionality.
“If still not satisfied after reconsideration by Parliament, the president must refer the bill to the Constitutional Court for a decision on its constitutionality.”
Mojapelo said should Parliament approve of the withdrawal and enact the repeal bill into law, "that might not be the end of the matter, because a constitutional challenge against that legislation can still be mounted on the basis that the repeal act itself is unconstitutional”.
“Indeed, such a challenge is already foreshadowed in this application... Either way, there would be clumsy piece-meal processes, with undesirable and embarrassing outcomes for South Africa.
"It would have given different and confusing signals concerning its withdrawal from the Rome Statute. The United Nations, the ICC and member states to the Rome Statute, as well as the broader international community, deserve a united, final and determinative voice from South Africa on this aspect. That can only be achieved through our country's normal legislative processes.”
He questioned what was so pressing for the national executive that the withdrawal from the Rome Statute could not wait for legislative processes.
“Government respondents have not provided any explanation for this seemingly urgent need to withdraw from the Rome Statute. All these, in our view, point to one conclusion: The prematurity and procedural irrationality of the lodging of the notice of withdrawal by the national executive without first consulting Parliament.
“This unexplained haste, in our view, itself constitutes procedural irrationality.” - News24