SA's withdrawal from ICC not being done legally - ISS

21 October 2016

Cape Town - The government's decision to withdraw from the International Criminal Court should have gone through Parliament for ratification first, the Institute for Security Studies (ISS) has said.

Justice Minister Michael Masutha said on Friday that the government's reason for removing itself as a signatory of the Rome Statute was due to a conflict between its obligations to the African Union to grant its heads of state immunity.

ISS executive director Anton du Plessis told News24 that Masutha was wrong in stating the decision to withdraw could have been made by Cabinet before consultation with Parliament.

"This is not a self-executing treaty. There are some self-executing treaties in South Africa but this is not one of them," he said on Friday.

"We most certainly need Parliamentary ratification of this decision."

'Timing raises questions'

Du Plessis said the decision was to be expected, but that its timing raises questions around the Zuma government's motives.

"South Africa has been teeing this up for some time now," he continued.

"But the timing is extremely suspicious because of the start of its own appeal to the Constitutional Court [on the matter] on November 22.

"The fact that the Constitutional Court would likely have upheld the Supreme Court of Appeal's judgment against the government is a massive factor here."

He said it would have been very damaging for the Zuma government if the Constitutional Court found it acted unlawfully.

"I think it's trying to create a political smokescreen around what they think the court was going to say."

SCA's ruling still stands

Du Plessis said that the executive's decision to withdraw its appeal to the Constitutional Court means the SCA's ruling still stands, and the government still finds itself in violation of the law.

"Even if Parliament repeals our commitment to the Rome Statute before November 22, it can't do so retrospectively.

"The law will still apply for the next 12 months, and the legal implication is that the head of government, that is Zuma, is still in violation of its own law."

Du Plessis said the decision shows yet another situation where the head of state has shown disrespect for the law.

"The implications will be that we'll see a further weakening of the social contract, and it comes at a time where the public's confidence in these issues is wearably thin.

"I don't think the South African public should sit back quietly and take this from the government."

DA to take legal action

The Democratic Alliance meanwhile said it will approach the courts to have the government’s decision to withdraw from the ICC set aside.

“The decision by Minister Nkoana-Mashabane to act unilaterally on this matter is a disgrace and shows the depth of impunity and disregard for the Rule of Law within the ANC," DA federal executive chairperson James Selfe said.

"Clearly she has taken her lead from President Jacob Zuma.”

This article first appeared on News24, see here.