In the UK, the courts ruled that the government’s decision to trigger Brexit had to be approved first by its parliament.
Now, in SA, the courts have ruled that a decision to withdraw from the Rome Statute of the International Criminal Court (ICC) must go to Parliament first — the exit cannot just be triggered by a Cabinet minister signing an order.
That is a victory for accountability and for the Constitution. But, at this stage, it is no more than a procedural victory. The big issue of whether SA should indeed withdraw from the court remains undecided. And, the danger is still that the government is lining up to appease some fairly dictatorial African leaders by pulling out of an institution, which does no more than impose on us and our neighbours human rights standards we thought we had already imposed on ourselves.
The case, which was brought by the DA and others, dates back to the government’s signing of a warrant to withdraw from the ICC in the wake of Sudanese President Omar al-Bashir’s visit to SA in June 2015 to attend the African Union summit. The ICC has warrants of arrest out for al-Bashir for war crimes, crimes against humanity and genocide related to the Darfur genocide. As a member of the ICC, SA should not have been harbouring him in the first place and certainly should not have flouted a decision by our own courts that ruled he should have been arrested the minute he stepped onto South African soil. Instead, he was quickly smuggled out of SA to evade the court ruling and the government then filed notice with the UN that it would withdraw from the ICC.
Now, the High Court in Pretoria has found the executive requires parliamentary approval to enter into or withdraw from an international agreement such as the Rome Statute, although it did not rule on the underlying issues of whether it was in line with the Constitution for SA to withdraw at all. With legislation already tabled in Parliament to repeal SA’s membership, chances are the ANC will use its majority to push it through.
It is in our interests to ensure human rights and democracy among our neighbours and we should be supporting institutions that do that — and being seen to do that
There is certainly a debate to be had on the merits of membership, so it is good it will be aired. The ICC’s detractors accuse it of discriminating against African countries because all the cases it is prosecuting (or trying to) are against African leaders. SA is is one of 34 African countries that are members and the court’s detractors argue that countries such as the US or Israel aren’t members, so why should SA be?
They argue too that Africa would do better with a regional African court that would hold African governments and their leaders to account for human rights violations, war crimes and the like and there are moves to set up such a court.
If the ICC is not fair to all, however, it would make more sense for countries in Africa to join it and push for change than to withdraw from it. That’s especially so because many of them are fairly new democracies (or as yet, not democracies at all) and don’t necessarily have robust institutions able to enforce democratic and ethical conduct from dictatorial leaders or past leaders.
Happily, SA does have such institutions and the courts have proved themselves several times lately as guardians of constitutionalism and democracy, despite efforts by the Zuma administration to undermine key institutions. That our courts are able to hold our leaders to account is the reason SA itself is not a candidate for prosecution by the ICC.
But, it is in our interests to ensure human rights and democracy among our neighbours and we should be supporting institutions that do that — and being seen to do that. The ICC may need change. But it looks pretty bad for SA to be withdrawing from an institution whose job it is to enforce standards of conduct and morality that are supposed to be
our standards.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.