The DA and constitutional rights bodies have welcomed a court ruling that South Africa’s notice of withdrawal from the International Criminal Court (ICC) without prior parliamentary approval was unconstitutional.
A full bench of the North Gauteng High Court in Pretoria ruled that the October 2016 notice, signed by International Relations Minister Maite Nkoana-Mashabane, and cabinet’s decision to deliver the notice to the United Nations Secretary-General were invalid.
The judges ordered President Jacob Zuma and the international relations and justice ministers to withdraw the notice forthwith.
The DA’s litigation followed government’s refusal to arrest and surrender Sudanese President Omar al-Bashir to the ICC to be tried for war crimes.
The high court and Supreme Court of Appeal declared the refusal unlawful.
Judge Phineas Mojapelo said retrospective approval by parliament could not cure the defects in the process, but emphasised that their ruling did not affect the validity of the justice minister’s tabling of withdrawal legislation currently pending before parliament.
He said the unexplained haste to withdraw from the Rome Statute of the ICC without waiting for SA’s legislative processes was irrational.
The DA’s James Selfe welcomed the ruling, saying government has been given an opportunity to stand back and come to a different conclusion.
“We believe that SA should remain a member of the ICC … There’s no doubt the ICC could be reformed, but we cannot be in a situation where we are party to tyrants, to human rights abusers, to perpetrators of genocide who come to SA and we do nothing about it,” he said.
Nicki van’t Riet of the Centre for the Advancement of the SA Constitution said the ruling meant South Africa continued to fall under the ICC’s jurisdiction with an obligation to exercise its criminal jurisdiction in terms of the statute.
She said withdrawal legislation would now have to go through the whole parliamentary process, including public participation, which could take years.