S. Africa’s opposition party threatens court action over withdrawal from ICC

South Africa’s leading opposition party, the Democratic Alliance (DA) said it would approach the courts to have the government’s notice of withdrawal from  the International Criminal Court (ICC) set aside. On Friday, Justice Minister Michael Masutha announced that the South African government has informed the UN of its intention to withdraw from the ICC. He […]

South Africa’s leading opposition party, the Democratic Alliance (DA) said it would approach the courts to have the government’s notice of withdrawal from  the International Criminal Court (ICC) set aside.

On Friday, Justice Minister Michael Masutha announced that the South African government has informed the UN of its intention to withdraw from the ICC.

He said the withdrawal would take effect one year after the UN Secretary-General received the notification.

The DA said it would hinge its case on the grounds that the decision  “is unconstitutional, irrational and procedurally flawed”.

The party said the decision by Minister of International Relations and Cooperation Nkoana-Mashabane to act unilaterally on this matter was “a disgrace and shows the depth of impunity and disregard for the Rule of Law within the ruling African National Congress (ANC)’’.

“Clearly she has taken her lead from President Jacob Zuma,” said the DA in a statement issued after Justice Minister Michael Masutha on Friday confirmed the South African government’s decision to withdraw from the ICC.

“Section 231 of the Constitution is clear that binding international agreements become law in the Republic upon ratification by the National Assembly (NA) and the National Council of Provinces (NCOP).

“It is thus unconstitutional for the Minister to unilaterally exit South Africa from the agreement, without Parliament having repealed the agreement first.

“Further, there has been no public consultation on this decision and thus it flies in the face of the Promotion of Administrative Justice Act.

“Finally, it is simply irrational, given the Constitutional imperatives underlying our participation in the ICC and the Rome Statute.’’

The party said it was also “outrageous” that the Minister would seek to anticipate a decision of Parliament with regards to the Implementation of the Rome Statute of the International Criminal Court Act, 27 of 2002.

“While slightly separate from the ratification Act, the Implementation Act would similarly need to be repealed as part of South Africa’s exit from the ICC. Parliament has not passed such an Act and such action by the legislature cannot be presupposed by the Executive. ‘’

DA said in a constitutional democracy as being practiced in South Africa it could not accept an Executive that was no longer committed to the fight against genocide, war crimes and crimes against humanity.

“Certainly we cannot turn a blind eye to such actions given our own history.

“Clearly the Minister was acting with a hole in her head when she decided to submit this withdrawal notice to the United Nations – it is unconstitutional, irrational and counter the prescripts of administrative justice, and as such must be set aside by the courts.

Similarly human rights group, Amnesty International, has described the decision by the South African government as a “deep betrayal” of victims of human rights atrocities across the world.

“South Africa’s sudden notice to withdraw from the ICC is deeply disappointing. In making this move, the country is betraying millions of victims of the gravest human rights violations and undermining the international justice system,” said Netsanet Belay, Amnesty International’s Research and Advocacy Director for Africa.

“South Africa’s support for the ICC, after the country suffered through decades of apartheid, was an important step towards creating rights respecting societies around the world.”

The global NGO called on the South African Parliament to convene urgently to reconsider the decision.

In a letter delivered to UN Secretary-General Ban Ki-moon,  the country’s Minister of International Relations and Cooperation Maite Nkoana-Mashabane said that South Africa’s membership of the ICC was interfering with its peace mediation efforts in Africa.

This was an apparent reference to the ICC’s indictment of Sudanese President Omar al-Bashir for alleged atrocities in Darfur.

The South African government was found by the country’s own Supreme Court of Appeal to have failed to uphold South African law by not arresting him when he visited South Africa in June last year.

Belay called on the South African government not to abandon its role as a champion of human rights and justice, but to rather engage the ICC.

“The Rome Statute is a covenant between countries that they will no longer allow crimes under international law, including apartheid, to be committed with impunity,” he said.