Cabinet has put a bill on hold that could make South Africa the first African country to withdraw from the International Criminal Court (ICC).
A memo with the draft bill was circulated at a Cabinet meeting last month, but two independent sources briefed about the meeting said Cabinet had not approved it going to Parliament, where it would be fine-tuned before it can be passed. It is not clear why the memo was rejected.
Justice Minister Michael Masutha confirmed to News24 that "all aspects relating to the ICC remain the subject of continued engagement within government", but he said, "I am not aware of any such decision" to reject the draft bill.
He added: "Cabinet discussions are confidential, except for the official communications released after Cabinet sittings. I am therefore not at liberty at this stage (to discuss it)."
When asked whether such a draft bill and memo existed, he said he was "unable to assist further at this stage".
South Africa this week was part of a scheduled meeting of the Bureau of the Assembly of State Parties (who are signatories to the Rome Statute). The bureau is the executive working committee of the ASP and has 18 members, representing state parties from all regions and continents.
South Africa, Ghana, Nigeria and Uganda are African countries represented on the bureau.
Last year, South Africa failed to arrest Sudanese President Omar al-Bashir, in line with its obligations as a Rome Statute signatory. Bashir is wanted by the ICC on charges of war crimes.
He was in South Africa to attend an African Union summit in Sandton in June, but the government argued that he should have diplomatic immunity to enable him to attend.
South Africa stepped up talk about withdrawing from the ICC following this incident, although it had previously shown solidarity with Kenya in opposing the court’s bid to prosecute President Uhuru Kenyatta and his deputy William Ruto.
Charges against both have since been dropped due to lack of evidence.
The Supreme Court of Appeal in March affirmed that the government’s decision not to arrest Bashir was "inconsistent with South African law". This appears to have been a Cabinet decision.
Any withdrawal from the ICC would still not mean that the South African government was off the hook, as this would not apply retroactively.
South Africa was one of the first states to become a signatory to the Rome Statute in 1998.
Parliament then drafted and passed the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 to domesticate the obligations of the Rome Statute. This act would have to be amended or repealed for South Africa to withdraw as signatory.
Before the ICC Act, South Africa had no domestic legislation on war crimes or crimes against humanity.