South Africa’s ICC withdrawal decision might not survive the post Zuma era

23 Oct 2016
South Africa's President Jacob Zuma

Sibonelo Radebe

There is a big chance that South Africa’s decision to withdraw from the International Criminal Court (ICC) will be challenged and perhaps delayed considerably. With time the decision might even be reversed due to change of leadership in the country’s ruling party, the ANC.

That view partly takes from the fact that the ANC, currently captured by the waning Jacob Zuma led bloc, is at war with itself. And many of the current decisions taken by the ANC led government are seen to be the last kick of a dying horse amidst signs of a ground swelling rebellion against Zuma and his cabal. You only need to look at how Zuma’s colleagues including the deputy president have defied his apparent will in his fight against the country’s finance minister Pravin Gordhan to appreciate the rebellion underway. ANC chief whip Jackson Mthembu took the rebellion to another level this weekend by calling for the ANC laderhsip to step aside.

Its easy to see the Al-Bashir matters as part of the broadly poor leadership of the ANC and the country. Indeed Professor Shadrack Gutto, from the Institute for African Renaissance at the University of South Africa, characterises the ICC withdrawal decision as projection of poor leadership. “To say this decision is disgusting is an understatement,” says Gutto. He says the decision should have no place in a country like South Africa which benefitted from the initiative by the international community to declare apartheid a crime against humanity. With this decision South Africa is going against that spirit and saying to the world its ok for apartheid like crimes to prosper without consequence.

Gutto said the manner in which the South African government wants to effect this move without consulting parliamnent is problematic. “I hope citizens will stand up and oppose it,” he said.

The ICC withdrawal might find opposition in law first and then be scuppered by change of guard in the ANC leadership in 2017 and after the national elections in 2019. The chance of a legal challenge to the ICC decision is well expressed by Professor Magnus Killander from the Centre for Human Rights in the Faculty of Law of the University of Pretoria.

Killander contends that “South Africa’s decision to withdraw (from the ICC) will be challenged but given the majority that the governing ANC enjoys in parliament, it is likely that in the end it will stand.” Killander does not factor in the shifting ANC politics. He only interrogates the reasons provided by the South African government for the withdrawal.

South Africa’s minister of justice and constitutional development, Mike Masutha, delved into the legalities and anchored the decision on the Omar al-Bashir case. Masutha’s argument is mainly that the Rome Statute conflicts with the Diplomatic Immunities and Privileges Act.

Bear in mind that the South African government has lost the al-Bashir case in the country’s courts. Al-Bashir came to South Africa in June 2015 for the African Union Summit with an ICC warrant of arrest over his head. A civil society group called the Southern Africa Litigation Centre (SALC) went to court to force the South African government to execute the ICC warrant.

SALC did secure an order from the South African court for the arrest of Al Bashir based on the principle that as a signatory of the Rome Statute which anchors the ICC, South Africa was legally obliged to execute the ICC warrant of arrest. But the South African government is said to have let al-Bashir slip out of the country thus defying its own court. The government took the matter to the Supreme Court of Appeal and still lost the case and had expressed an intention to take the matter to the constitutional court. Masutha announced that the government was no longer taking the matter to the constitutional court but focusing on withdrawing from the ICC.

It is in the withdrawal process outlined by Masutha that Killander sees a gap for opposition. The decision was taken without consulting parliament with Masutha claiming that the executive does not need to do so.

Citing section 231 of the South African constitution Killander argues that the Rome Statute was ratified by parliament when it was adopted. The ICC withdrawal argues Killander, does not fall within the frame of international agreements that are of a “technical, administrative or executive nature” and can be summarily tackled by the executive.

South Africa’s third largest political party, the Economic Freedom Fighters has warned that the government’s decision to withdraw without taking the matter to parliament might be unconstitutional. In a statement issued over the weekend the EFF states that while it has several objections to the ICC political posture it notes with concern the intention to withdraw from the ICC.

We are also shocked that government has not consulted other organs of state to take such a drastic step. It should have at least sought counsel from the judiciary and at the very least, informed parliament of its intent.”

In essence, adds the EFF statement, this unilateral decision has undermined the constitutional principle of ‘separation of powers’ in which the three organs of state are separate but interdependent. “Government has the obligation to consult with parliament before making such a drastic policy move that may have implications on the running of the state.”
With such objections its possible the matter will land in court and drag for a considerable period. All the while the war within the ANC will continue to unfold with the rebellion against Zuma getting bolder.

There is a slight chance the ICC withdrawal might be characterised by some within the ANC as part of the ‘Zumafication’ of the ANC which must be collapsed after his departure. Such view might come from a standpoint which says that Zuma has dragged South Africa closer to pariah states and their corrupt leaders. Examples will include close ties with Angola’s Jose Eduardo dos Santos, Democratic Republic of Congo’s Joseph Kabila and now Al-Bashir.

That is not to say the ICC has no faults. As expressed by Killander the view that “there is no need to throw the baby out with the bath water” might find sympathy with time within an ANC that is less of an ardent ‘African Nationalist’. Killander does note that certain concerns about the ICC can be addressed without repealing the statue as a whole but through considered amendments. This is so that “genocide, crimes against humanity and war crimes should remain on the statute book.”

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