The Democratic Alliance (DA) said on Friday it would approach the courts to have South Africa’s notice of withdrawal to the International Criminal Court (ICC) set aside on the grounds that it “is unconstitutional, irrational and procedurally flawed”.
The DA said the decision by Minister of International Relations and Cooperation Maite 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 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thus unconstitutional for the Minister to unilaterally exit South Africa from the agreement, without Parliament having repealed the agreement first.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.
It is 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 While slightly separate from the ratification Act, the Implementation Act would similarly need to be repealed as part of South Africa’s exit from the ICC.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.
In a constitutional democracy such as ours, we cannot accept an Executive that is 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.