South African lawmakers welcome decision to withdraw from ICC; opposition party threatens court action over withdrawal

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The Office of the African National Congress (ANC) Chief Whip on Friday in Cape Town, South Africa welcomed the decision by the government to withdraw from the International Criminal Court (ICC).
Spokesperson Moloto Mothapo said the party had long-held view that the ICC has diverted from its mandate of being an independent and objective instrument in bringing an end to heinous crimes against humanity and the violation of human rights on the African Continent.
He said that instead, the ICC has allowed non-member states to dictate and interfere with its work to suit their own imperialist agendas.
Mothapo reaffirmed the ANC unwavering commitment to the protection and promotion of human rights on the continent of Africa and beyond.
“We are steadfast in our belief that those who have committed crimes against humanity must be prosecuted and punished by an impartial body empowered by international cooperation to defend the universal values of justice.”
Mothapo, however, reiterated ANC call on the AU to strengthen its own institutions designed to promote human rights and protect its people against crimes against humanity, war crimes and crimes of aggression where they cannot find justice in their own countries.
“As the ANC in Parliament, we will be ready to carry out our legislative function as part of the parliamentary process of repealing the Implementation of the Rome Statute once it has been introduced to Parliament by Cabinet.
Michael Masutha, Minister of Justice and Correctional Services, had earlier confirmed that South Africa has begun the process of withdrawing from the ICC.
He explained that South Africa is hindered by the Rome Statute under which the ICC was established.
He added that the Rome Statute compels his country to arrest people, who may enjoy diplomatic immunity but who are wanted by the ICC.
He was referring to Sudanese President Omar al-Bashir who is wanted by the ICC for alleged anti-humanity crimes.
South Africa rejected a request by the ICC to arrest al-Bashir when he was attending the 25th African Union Summit in Johannesburg in June, 2015.
Masutha argued that in addition to complying with its obligations to the ICC, the country has obligations to the AU, which rules that no organisation can arrest any sitting head of state in African countries.
The minister said that implementation of the Rome Statute is in conflict and inconsistent with provisions of the country’s Diplomatic Immunities & Privileges Act.
“Our focus is to ensure that international law obligations are properly aligned with our domestic law, without the uncertainties and contradictions that exist.
Meanwhile, South Africa’s leading opposition party, the Democratic Alliance (DA), said it would approach the courts to have the government’s notice of withdrawal from the ICC set aside.
The DA said it would hinge its case on the grounds that the decision “is unconstitutional, irrational and procedurally flawed”.
The party said the decision by Minister of International Relations and Cooperation Nkoana-Mashabane to act unilaterally on this matter was “a disgrace and shows the depth of impunity and disregard for the Rule of Law within the ruling African National Congress (ANC)’’.
“Clearly she has taken her lead from President Jacob Zuma,” said the DA in a statement issued after Justice Minister Michael Masutha on Friday confirmed the South African government’s decision to withdraw from the ICC.
“Section 231 of the Constitution is clear that binding international agreements become law in the Republic upon ratification by the National Assembly (NA) and the National Council of Provinces (NCOP).
“It is thus unconstitutional for the Minister to unilaterally exit South Africa from the agreement, without Parliament having repealed the agreement first.
“Further, there has been no public consultation on this decision and thus it flies in the face of the Promotion of Administrative Justice Act.
“Finally, it is simply irrational, given the Constitutional imperatives underlying our participation in the ICC and the Rome Statute.’’
The party said it was also “outrageous” that the Minister would seek to anticipate a decision of Parliament with regards to the Implementation of the Rome Statute of the International Criminal Court Act, 27 of 2002.
“While slightly separate from the ratification Act, the Implementation Act would similarly need to be repealed as part of South Africa’s exit from the ICC. Parliament has not passed such an Act and such action by the legislature cannot be presupposed by the Executive. ‘’
DA said in a constitutional democracy as being practiced in South Africa it could not accept an Executive that was no longer committed to the fight against genocide, war crimes and crimes against humanity.
“Certainly we cannot turn a blind eye to such actions given our own history.
“Clearly the Minister was acting with a hole in her head when she decided to submit this withdrawal notice to the United Nations – it is unconstitutional, irrational and counter the prescripts of administrative justice, and as such must be set aside by the courts.
Similarly human rights group, Amnesty International, has described the decision by the South African government as a “deep betrayal” of victims of human rights atrocities across the world.
“South Africa’s sudden notice to withdraw from the ICC is deeply disappointing. In making this move, the country is betraying millions of victims of the gravest human rights violations and undermining the international justice system,” said Netsanet Belay, Amnesty International’s Research and Advocacy Director for Africa.
“South Africa’s support for the ICC, after the country suffered through decades of apartheid, was an important step towards creating rights respecting societies around the world.”
The global NGO called on the South African Parliament to convene urgently to reconsider the decision.
In a letter delivered to UN Secretary-General Ban Ki-moon, the country’s Minister of International Relations and Cooperation Maite Nkoana-Mashabane said that South Africa’s membership of the ICC was interfering with its peace mediation efforts in Africa.
This was an apparent reference to the ICC’s indictment of Sudanese President Omar al-Bashir for alleged atrocities in Darfur.
The South African government was found by the country’s own Supreme Court of Appeal to have failed to uphold South African law by not arresting him when he visited South Africa in June last year.
Belay called on the South African government not to abandon its role as a champion of human rights and justice, but to rather engage the ICC.
“The Rome Statute is a covenant between countries that they will no longer allow crimes under international law, including apartheid, to be committed with impunity,” he said.

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