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S. Africa Opposition to Legally Challenge Government’s ICC Withdrawal Decision

  • Peter Clottey

South Africa ICC Withdrawal: South Africa's minister of justice and correctional services, Michael Masutha, speaks to the press in Pretoria, South Africa, Friday, Oct. 21, 2016. Masutha said South Africa will soon submit a bill in parliament to withdraw f

South Africa ICC Withdrawal: South Africa's minister of justice and correctional services, Michael Masutha, speaks to the press in Pretoria, South Africa, Friday, Oct. 21, 2016. Masutha said South Africa will soon submit a bill in parliament to withdraw f

South Africa’s opposition party, the Democratic Alliance (DA) plans to petition the Constitutional Court Monday to challenge the government’s decision to withdraw the country’s membership to the Hague-based International Criminal Court (ICC). This, after Justice Minister Michael Musutha said the government will present a motion to parliament for legislators to repeal the country’s signatory to the Rome Statute that established the ICC.

On Friday, South Africa officially notified the United Nations that it wants to withdraw from the ICC.

But parliamentarian James Selfe, a leading member of the DA’s legal affairs group says President Jacob Zuma’s government constitutionally erred in its approach to the United Nations before seeking approval from the South African parliament.

“The Democratic Alliance is disgusted at this decision. We think it sends out an entirely incorrect message around our commitment to human rights and our abhorrence of human rights abuses and of genocide, and we believe that it would set back our foreign policy and the way in which South Africa is viewed in a very fundamental way,” said Selfe.

“We also believe that the decision itself has been taken in a way which is unconstitutional, unlawful …accordingly, we will we will be lodging papers in the constitutional court on Monday morning seeking the court’s ruling seeking that it reviews and sets aside this decision by the South African government.

“You cannot inform the U.N. Secretary General that you are withdrawing before you have consulted the South African parliament who has ratified the treaty. That’s putting the cart before the horse. You first consult the South African parliament, you get parliament’s approval and then you communicate with the Secretary General. But we all know why this is so, the South African government wants to come to parliament for the fait accompli, and say that unless members of parliament support that motion, we would be embarrassing the South African government in its dealings with the United Nations,” Selfe added.

The decision of South Africa to begin the process to withdraw from the ICC comes days after the Burundian parliament approved Bujumbura’s proposed motion to withdraw from the Hague-based court.

The African Union - the continental body - has been critical of the ICC. It says the court targets Africans despite human rights abuses and crimes against humanity committed elsewhere around the world.

The AU cited various instances, including the ICC issuing arrest warrants against Sudan’s President Omar Hassan al-Bashir after accusing him of rights abuses and crimes against humanity in the Darfur region. The successful prosecution of Pierre Bemba, former vice president of the Democratic Republic of Congo; the trial of Kenya’s President Uhuru Kenyatta and Deputy President William Ruto - among others - the AU says are proof the courts mainly target Africans.

Supporters of the government says the administration in Pretoria is following signals from the AU, which has called on members not to cooperate with the ICC.

“There are several states that also disagree with that. For example Botswana has made it very clear that they are committed to remaining members of the ICC notwithstanding the resolution of the African Union,” said Selfe.

“We believe the resolution of the African Union is spurious anyway, because it was based on the perception it was simply African heads of state and African rulers that were the subjects of ICC complaints, investigations and trials, but that is obviously not true. But even it were the perception, then the duty lies on the African Union to engage the ICC to point out in what respect it believes that there haven’t been complete even-handedness on the part of the ICC and to invite the ICC to take retroactive actions on those regard.”

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