A court in the country’s administrative capital Pretoria on Wednesday ruled that South Africa’s recent decision to withdraw from the International Criminal Court (ICC) was unconstitutional, and ordeed the government to revoke it.
It should be noted that South Africa had announced in October that it was leaving the ICC on the grounds that its membership hampered its efforts to help resolve conflicts in Africa.
During the time, Justice Minister Michael Masutha highlighted the dilemma South Africa faced in 2015 when Sudanese President Omar al-Bashir – wanted for war crimes by the ICC – attended an African Union summit in Johannesburg. Then South Africa resisted pressure to arrest him, arguing that he had diplomatic immunity.
Democratic Alliance, the main opposition took the government to court, arguing that Masutha acted unlawfully by announcing the withdrawal without seeking parliamentary approval.
The move was “unconstitutional, irrational and procedurally flawed,” the DA said.
The North Gauteng High Court said the power to conduct international treaties belonged to the executive, but that such agreements must go before parliament.
“It’s expected that the executive go back to parliament. We have rights, we have obligations, and we have parliament,” Judge Phineas Mojapelo said during the court session, which was broadcast live by the television station eNCA.
Mojapelo added that government decisions must be based on “the expressed authority of the constitution.” Burundi and Gambia have also announced plans in the past to pull out of the ICC.
However, newly elected Gambian President Adama Barrow has said he will reverse his predecessor’s decision and keep the country in the ICC. African countries have accused the ICC on focusing on human rights violations in Africa, instead of other continents.
There has been concern that an eventual mass withdrawal by African countries could weaken the authority of the international tribunal.
Advocates of the court retaliate that most of the African cases before the ICC were referred there by African leaders who worried their courts could not handle the complexities of the severe kind of cases that land before the court