Quitting ICC unconstitutional, judges rule

THE government has again found itself with egg on its face after a full bench of the Pretoria High Court found its notice of withdrawal from the Rome Statute of the International Criminal Court (ICC) procedurally invalid and unconstitutional yesterday.

The three judges also found the cabinet’s decision to deliver the notice to the ICC without parliament’s approval invalid and unconstitutional.

The court ordered President Jacob Zuma‚ International Relations Minister Maite Nkoana-Mashabane and Justice Minister Michael Masutha to revoke the notice of withdrawal.

Deputy Judge President Phineas Mojapela said: “There is prematurity and procedural irrationality in the notice to withdraw from the Rome Statute by [the] executive without parliamentary approval.”

The haste with which the process had been conducted constituted procedural irrationality, he said.

The DA approached the court last year to challenge the government’s decision to withdraw from the ICC by notifying the UN of its intention to revoke its ratification of the Rome Statute‚ which established the ICC.

On October 21, Masutha announced that South Africa had initiated the process of withdrawing from the ICC.

The decision followed several court judgments that the state had violated the law by not arresting Sudanese President Omar al-Bashir‚ who has been indicted by the ICC‚ during his visit to South Africa in June 2015.

DA federal executive chairman James Selfe said his party was delighted by the judgment‚ saying it had believed all along that the decision was irrational and unconstitutional.

“We have been vindicated by the court‚” he said.

“It is quite clear from the judgment that the withdrawal in such haste had everything to do with the fact that the government is embarrassed by the fact that it has lost two court cases around the validity of its actions in the Al-Bashir matter and took the easy option, which was simply to withdraw from the ICC.”

Selfe said the DA hoped the ruling created the opportunity for the government to reconsider the decision and for it to come back to parliament with a more considered approach.

“We hope this judgment creates a breathing space for the government to go back to the drawing board‚” he said.

Selfe said if the government appealed against the ruling‚ the DA would oppose it‚ but it was hoped there would be no further waste of taxpayers’ money.

“It is inexplicable that a political party that was at the forefront of fighting for human rights during the armed struggle should find itself in a situation where it defends people who have been found guilty‚ or at least charged, with gross human rights abuses and genocide.

“We believe that we have completely lost our moral compass as a country‚” he said.

The government was also ordered to pay the costs of the applicants‚ including the costs of two senior counsel.