Among the current ANC government’s most politically provocative moves was its October 2016 announcement that it had initiated proceedings to withdraw from the Rome Statute of the International Criminal Court (ICC).
The ANC’s discussion documents in preparation for the National General Council (NGC) in September 2015 outlined government’s belief that the ICC had become inherently anti-African and was “dominated” by Western influence and interests.
“It is our view […] that the ICC has gradually diverted from its mandate and allowed itself to be influence [sic] by powerful non-member states. We perceive it as tending to act as a proxy instrument for these states, which see no need to subject them [sic] to its discipline, to persecute African leaders and effect regime change on the continent. It is being used as a court against Africa,” the document reads.
While this argument may perhaps hold some weight – eight of the nine cases currently in front of the ICC involve African presidents – the DA, supported by several public interest law firms, in December opposed the withdrawal in the North Gauteng High Court.
The DA’s case challenged the procedural constitutionality and rationality of the state’s withdrawal from the Rome Statute, arguing that Parliament was not consulted prior to the decision being taken by Cabinet.
With the North Gauteng High Court expected to deliver judgement late in January or in early February, the impact of South Africa’s attempt to isolate itself from international justice processes will soon return to the public consciousness.
The economic fall-out
While its effect on the health of the nation’s economy remains uncertain, chief economist at Econometrix Dr Azar Jammine believes the political decision could reflect negatively on the strength of SA’s institutions.
According to Jammine, among the drivers of SA’s avoidance of a recent rating downgrade was the perception that its institutions, such as National Treasury, the South African Reserve Bank and the South African Revenue Service, remained independent of political influence.
Moreover, the country retained a free press, a vibrant democracy and a robust judiciary.
“These factors are encouraging, as they show that people are not just sitting back and accepting the [political] nonsense. A withdrawal from the ICC could, however, be seen as a blow to an attempt by the country to reaffirm commitment to these institutions,” he tells finweek.
Jammine adds that the imposition of economic sanctions by ICC member states against SA following its withdrawal is unlikely, as members trade heavily with non-signatories to the Rome Statute, including the US, India and China.
Offering his position on SA’s motivation for withdrawal, Jammine reinforces the perception that the court has historically failed to pursue non-African leaders that have contravened international law with the same gusto as that of African heads of state.
“Members of the ICC need to be careful, because there is a perception that the ICC only attacks African countries, and there are reasons to believe this. There aren’t the same sanctions against leaders in other developing countries or the East,” he contends.
Rating agencies will likely await the conclusion of the 12-month withdrawal process before introducing it as a possible variable in their calculation of SA’s credit rating.
“If they then feel that our institutions are faltering, it may add to a downgrade,” Jammine holds.
Absent African alternative
While acknowledging that the ICC is “imperfect and in need of reform”, the Southern African Litigation Centre (Salc) encourages member states to constructively engage as opposed to merely abandoning it.
“While Salc believes that justice is better served domestically, it also believes firmly in supporting international criminal justice, which includes supporting and critically engaging with the ICC,” it states.
Speaking to finweek in January, Salc international criminal justice attorney Suzgo Lungu confirmed that there was no comparative court or tribunal in Africa that could deal with regional or international crime.
While the ANC NGC has called for the operationalisation of the African Court of Justice and Human Rights (ACJHR), the Malabo Protocol of 2014 has not been ratified by any state yet and requires 15 ratifications to come into effect.
“The current court, sitting in Arusha, has no jurisdiction over international crimes such as genocide, crimes against humanity and violations of war,” says Lungu.
While the South African Human Rights Commission (SAHRC) recognises the establishment of the African court as an attempt to ensure greater accountability, its jurisdiction does not extend to criminal prosecutions.
The court’s protocol also grants immunity to sitting heads of state and other senior state officials.
“Combined with the tendency of some heads of state to want to remain in power for life, the extension of such immunity will undoubtedly result in some heads of state not being held accountable for their actions.
“Moreover, the granting of immunity to sitting heads of state is likely to encourage an increase in the number of heads of state in Africa who want to overstay in office (even for life), while unleashing a litany of human rights violations against their citizens,” the commission warns.
Demonstrating solidarity with Cabinet, Parliament’s Portfolio Committee on International Relations and Cooperation last year welcomed the withdrawal decision after it had been announced, imputing the decision on the apparent failure of “international justice” and claiming the lack of universality of application in the manner in which countries are treated.
“The ICC is biased towards selectively targeting African heads of state. Leaders of the permanent members of the United Nation’s Security Council are never acted against when they transgress,” it said at the time.
In contrast, several civil society groupings promptly heralded their opposition to the unprecedented exit bid, describing the move as “irrational and unconstitutional”, undermining SA’s commitment to international law and its human rights record.
The Council for the Advancement of the South African Constitution (Casac) argued that the unconstitutionality of the decision lay in the infringement of the principle of separation of powers, which makes it clear that only the National Assembly and the National Council of Provinces can approve or withdraw from international agreements.
“This application raises for the first time a question that falls squarely into a sensitive area of the doctrine of separation of powers: Which branch of government, the executive or the legislative, has the power to withdraw from international agreements?
“Casac believes that only Parliament, and not the executive, can take South Africa out of an international treaty which it had ratified,” said Casac executive secretary Lawson Naidoo.
The African Centre for Justice and Peace Studies (ACJPS) said SA’s intended withdrawal from the ICC represents a devastating blow for victims of international crimes across Africa.
“As South Africa is one of the founding members of the court, its announcement sends the wrong message to victims that Africa’s leaders do not support their quest for justice,” said the ACJPS’s Mossad Mohamed Ali.
Lungu, meanwhile, points to the possibility of other African states following SA’s lead, with Burundi and The Gambia having already indicated their intention to withdraw.
This article originally appeared in the 2 February edition of finweek. Buy and download the magazine here.