President Cyril Ramaphosa and the ANC have backtracked on their earlier position that South Africa was withdrawing from the International Criminal Court.
Ramaphosa’s spokesperson Vincent Magwenya said there was an error made by the president on the matter on Tuesday, during the state visit of Finnish President Sauli Niinisto.
The ANC also back-pedalled on the comments made by secretary-general Fikile Mbalula, saying there was no firm decision from the ANC national executive committee’s meeting at the weekend to withdraw from the ICC.
Political analyst Prof. Bheki Mngomezulu, director of the Centre for the Advancement of Non-Racialism and Democracy at Nelson Mandela University, said on Wednesday this showed there was lack of coherence and consistency in what came out of the NEC meeting.
He said if the ANC and government continued with this backtracking on key policy decisions, it would tarnish the image of the country abroad.
“Now that the damage has been done the president, who is also the president of the ANC, should be the one taking the lead. The person who should take the lead is the president of the party. My suspicion is that a decision was taken by the NEC and that was clear from what Fikile Mbalula and Ramaphosa said. But they may have communication from our international partners. Something must have happened between Monday and yesterday,” said Mngomezulu.
“If they continue to lead us like this, no one is going to take us seriously. We are pressed between a rock and hard place.”
Magwenya said South Africa remained a signatory to the Rome Statute.
“South Africa remains a signatory to the ICC in line with a resolution of the 55th National Conference of the ANC – held in December 2022 – to rescind an earlier decision to withdraw from the ICC.
“The December resolution was reaffirmed at a meeting of the national executive committee (NEC) of the ANC during the weekend of 21 to 24 April 2023. The NEC had also reflected on the potential withdrawal from the ICC as an option that would arise as a measure of last resort in the absence of legal options that would result in fairness and consistency in the administration of international law,” said Magwenya.
He said South Africa would work towards the position of the Malabo protocol, which called for the establishment of the criminal court in Africa.
It would complement the ICC as a court of last resort.
In addition, South Africa was thinking of amending the law in relation to the ICC as is done in other countries.
“Furthermore, South Africa is considering a legislative amendment that would domesticate the Rome statute so that it reflects all the articles of the Rome Statute. This includes provision of article 98 of the statute that requires a waiver of immunities for persons charged by the ICC from third party countries where there is no referral by the United Nations Security Council,” said Magwenya.
In a statement, the ANC also backtracked from the position of withdrawing from the ICC.
It said the NEC had at the weekend discussed the inconsistent application of the law.
In order to address the issue of the inconsistent application of international criminal law, there were options on the table, the ANC added.
This included the revival of the Malabo protocol for the establishment of the criminal court in Africa.
It would complement the ICC “as a court of last resort.”
The other option was to amend the country’s law to domesticate the Rome Statute.
The ANC said when Mbalula made the comments on Tuesday on the withdrawal, he meant it would be as a last resort.
“In outlining this broad context of discussion, an unintended impression may have been created that a categorical decision for an immediate withdrawal had been taken. This is not so. We reiterate the resolution of conference remains our policy position until such a point where its implementation does not yield the required result,” said the ANC.