Affirming the principle of legality in the ICC withdrawal decision – CFCR

Centre welcomes court ruling, says it is an affirmation of key principles which underpin SA's constitutional democracy

Affirming the principle of legality in the ICC withdrawal decision

22 February 2017

The Centre for Constitutional Rights (CFCR) welcomes today’s ruling by the North Gauteng High Court that the government’s withdrawal from the International Criminal Court (ICC) was unconstitutional and invalid in the absence of such approval by Parliament.

The ruling is an important affirmation of key principles which underpin South Africa’s constitutional democracy. Previously, the Constitutional Court has held that every exercise of public power - including Executive conduct - must abide by principles of legality, and further that the exercise of all public power is always subject to constitutional control. This is also true for the exercise of public power in respect of foreign affairs.

The National Executive preempted the parliamentary process to withdraw South Africa from the ICC without prior approval from Parliament, as is required by the Constitution. The fact that the National Executive overlooked Parliament in this regard was a breach of the separation of powers doctrine, which should create checks and balances between the Executive and the Legislature.  In this regard, the National Executive had effectively usurped the powers of the Legislature and had encroached on an area of core competency of the Legislature. In any event, the notice of withdrawal did not involve public participation, unlike parliamentary involvement, which allows public participation in the processes. This too, was out of line with the Constitution, which provides that all people shall be entitled to take part in the administration of the country. The ruling makes it apparent that only Parliament has the power to decide whether South Africa can cease to be bound by international agreements.

Practically speaking, the National Executive may simply wait for the parliamentary process to play out. With the governing party holding a parliamentary majority, the current Rome Statute of the International Criminal Court Act Repeal Bill will probably be passed into law.

This means that the National Executive may still issue a withdrawal notice to the United Nations, thus formally withdrawing South Africa from the ICC, and from any obligations arising as a result of this membership. The High Court decision, nevertheless, affirms the Constitution and makes it clear that narrow party political interests should not be placed ahead of the government’s constitutional and legal obligations.

Sovereignty and international law must coexist. It is a pity that South Africa chose to make a point about its sovereignty after its own courts issued a warrant of arrest for President al-Bashir - wanted by the ICC for crimes against humanity, war crimes and genocide. 

By Ms Phephelaphi Dube, Director: Centre for Constitutional Rights, 22 February 2017