London, Feb. 23, GNA – The South African government’s decision to withdraw from the International Criminal Court (ICC) in The Hague was invalid because Parliamentary approval was not sought, the North Gauteng High Court in Pretoria ruled on Wednesday.
The court ordered the government to revoke the notice of withdrawal sent to the UN Secretary General late last year, meaning the process will have to restart again if the government still insists on South Africa leaving the ICC.
The Democratic Alliance (DA), a South African Political Party, had taken the case to court, citing as supporting respondent to the Southern Africa Litigation Centre (SALC), which had legally challenged the South African government in 2015 for failing to arrest Sudanese President Omar al-Bashir while in South Africa.
President al-Bashir is wanted by the ICC to answer charges of genocide and war crimes allegedly committed.in the Sudanese Region of Darfur.
In the ICC withdrawal case, the SALC argued that the South Africa Constitution, among other things, “imposes an obligation on government to obtain prior Parliamentary approval before withdrawing from any international agreement”.
The SALC also challenged the government’s decision to withdraw from the Rome Statute of the ICC “without establishing a legal framework to deal with pending or ongoing cases and investigations”.
It added that the withdrawal move was “irrational” and had “been taken in bad faith”.
After the court ruling, SALC’ Executive Director, Kaajal Ramjathan-Keogh, said: “We are delighted that the Court has recognised and corrected this failing on the part of government.
“Unilateral executive action which is not in line with the constitution will not be tolerated. “While we are mindful that it is the prerogative of the state to enter into international agreements, it is also important to realise the supremacy of the constitution.
“The executive cannot simply exit an international agreement in our constitutional democracy because, as the court has rightly held, such a process requires prior Parliamentary approval.
“This is a sound judgment and it would be unfortunate if [the] government decides to appeal. “This decision confirms that our courts, while recognising and respecting the separation of powers doctrine, are willing to take bold steps to ensure that the executive does not overstep its role”, Ramjathan-Keogh added..
The South African Parliament has already called for written submissions on the ICC Repeal Bill.
The SALC’s mandate is to ensure that all persons charged with or suspected of committing international crimes of genocide, crimes against humanity and war crimes, among other issues, face accountability and are arrested and tried before competent tribunals.
This was why the SALC decided to pursue the arrest of President al-Bashir when he visited the country in June 2015.
South Africa, Burundi and The Gambia served notices of withdrawal from the ICC to the UN last year.
However, with the recent political change in The Gambia, the new government has rescinded its withdrawal notice.