Pretoria – South Africa’s withdrawal from the International Criminal Court (ICC) was still on the cards, but this time the cabinet would follow procedure and first consult Parliament, Justice Minister Michael Masutha said.
The minister said on Wednesday the court order that the government had to forthwith revoke the notice of withdrawal was just a temporary setback and only delayed things by a few months.
Masutha said that if all that was at issue was the procedure followed by the government in withdrawing, the route now was to approach Parliament for the go-ahead.
“If Parliament concurs, we will issue the notice afresh.”
Masutha did not think the government would appeal the judgment, as it only addressed the procedure followed in withdrawing from the ICC.
“On the face of it, it does not seem necessary to challenge the judgment. It could just further delay the process.”
A full bench (three judges) unanimously found the notice of withdrawal from the Rome Statute of the ICC signed on October 19 last year without prior parliamentary approval was unconstitutional and invalid.
Deputy Judge President Phineas Mojapelo said South Africa could only withdraw from the Rome Statute on approval of Parliament and after the repeal of the Implementation Act.
The judgment came in the wake of an application by the DA to declare the notice of withdrawal from the ICC unconstitutional and invalid as the correct procedure was not followed.
James Selfe of the DA responded to the party’s victory, saying the government had now been given an opportunity to stand back and come to a different decision regarding the withdrawal from the ICC.
“We hope the judgment does give the government the breathing space to reconsider things.”
Selfe also expressed the hope that there would be a proper public participation process before any decision was taken.
Nici van’t Riet, who represented the Council for the Advancement of the South African Constitution during the hearing, in explaining the implications of the judgment, said South Africa would for now remain a party to the Rome Statute and fall under the jurisdiction of the ICC.
“This means South Africa has a continued obligation to the ICC to exercise its duties in terms of the Rome Statute, co-operate with the ICC and follow its procedures and mechanisms.”
Professor Frans Viljoen, director of the Centre for Human Rights, said the judgment underscored the critical importance that the government acted at all times with due regard to the demands of the constitution.