Separation of powers upheld in judgment
THE International Criminal Court (ICC) – launched in July 2002 – has 124 member states. It is the first legal body with permanent international jurisdiction to, among others, prosecute genocide, crimes against humanity and war crimes.
South Africa, as one of the founding members of the ICC, notified the UN in October last year of its intention to withdraw from the Rome Statute, the 1998 international treaty that established the ICC in The Hague, Netherlands. Its withdrawal would have taken place in October this year.
The political background to the intention to withdraw from the ICC is that the South African government announced its declared intention to leave after the ICC criticised it for disregarding a court order to arrest Sudanese President Omar al-Bashir – accused of genocide and war crimes – when he visited South Africa.
The ICC had issued warrants for his arrest and required him in terms of the Rome Statute to stand trial on charges of war crimes, crimes against humanity and genocide.
The ICC has become a controversial body and has had to contend with allegations of it pursuing a neo-colonial agenda in Africa, where most of its investigations have been based. As a result, three African states: South Africa, Gambia and Burundi, have signalled their intention to quit the ICC.
Subsequently, however, Gambia’s President-elect Adama Barrow has indicated this month that his country would remain in the ICC (Daily News, February 22, 2017).
The South African government has argued that its role within the Rome Statute impedes its diplomatic and peacekeeping efforts on the continent, since it is required to arrest sitting heads of state against whom the ICC has issued warrants of arrest.
Withdrawal from the statute would give it freedom to pursue its role as a peacemaker on the continent, without any obligation to arrest indicted heads of state against whom the ICC had issued warrants of arrest.
In a bold and brilliant judgment, Judge Phineas Mojapelo, Deputy Judge President of the high court in Pretoria, ordered the executive government to withdraw its notice to depart from the ICC because such withdrawal is unconstitutional on procedural grounds.
This important judgment involved the battle of the titans, with Jeremy Gauntlett, SC, appearing for President Jacob Zuma and the executive, and Steven Budlender, SC, appearing for the DA , respectively. Both these SCs are considered the most erudite and competent advocates in South Africa.
In his meticulous judgment, Judge Mojapelo challenged Gauntlett’s argument that it was the executive’s sole prerogative to enter into and indeed withdraw from treaties that the country had validly entered into and that Parliament merely needed to give its approval.
In categorical terms the judge declared: “It’s expected that the executive go back to Parliament. We have rights, we have obligations and we have Parliament… decisions executed by the executive must be on the basis of expressed authority of the constitution.”
Judge Mojapelo indicated that if the authority to withdraw unilaterally by the executive was not expressed in the constitution, it is essential to take the matter to Parliament for ratification.
Merely informing Parliament of a fait accompli of withdrawal did not suffice, he said.
This singularly important judgment is a powerful affirmation of the seminal principles of our democracy, based on the philosophy of constitutionalism, involving the rule of law and the separation of powers.
In innumerable judgments, the Constitutional Court has declared unequivocally that all exercise of public power, including, par excellence, executive conduct must comply with the principles of legality and everything it encompasses.
This means that every aspect and manifestation of public power is subject to constitutional control. This also appertains to the exercise of public power in respect of foreign affairs.
What is manifestly clear from the judgment is that the national executive, ie President Zuma and the relevant ministers, such as Justice Minister Michael Masutha, in effect pre-empted the essential parliamentary process to withdraw from the ICC without the prior approval of Parliament, as required by the constitution.
This constituted a usurpation of Parliament’s power and is a clear breach of the celebrated doctrine of separation of powers, which is designed to prevent abuse of power by virtue of the checks and balances that operate between the executive and the legislature.
Furthermore, the mere notice of involvement, unlike parliamentary involvement, does not allow public participation in the processes.
This state of affairs is also incompatible with our rigid constitution and its entrenched Bill of Rights.
What the ruling does make clear is that Parliament alone has the power to decide whether South Africa can cease to be bound by international treaties. In this regard, all the relevant parliamentary procedures must be strictly complied with.
This significant judgment is the hallmark of a constitutional democracy, in which the executive does not have carte blanche.
The judgment deals essentially with the correct procedures that must be followed to withdraw and not the substantive issue of merit of such withdrawal.
It reflects another salient example of the excellent reputation of the South African judiciary that indicates that our constitution is working and is a dynamic phenomenon. It means that the courts are acting independently and giving judgments without fear or favour.
The government indicated that it had noted the judgment of the high court in Pretoria and no decision has apparently been taken to institute an appeal. The DA states that it has been vindicated by the decision of the high court.
Devenish is an emeritus professor at the University of KwaZuluNatal and is one of the scholars who assisted in drafting the interim constitution in 1993