The South African government\u2019s decision to withdraw from the International Criminal Court (ICC) in The Hague has been stalled when the High Court in Pretoria ruled on February 22 that the move was invalid because parliamentary approval was not sought.<\/p>\n
The North Gauteng High Court ordered the government to rescind the notice of withdrawal that it had sent to the UN Secretary-General late last year. This means that if the government is still planning to withdraw South Africa from the ICC, it will have to go through the process all over again.<\/p>\n
The Democratic Alliance (DA) political party had brought the case to court in conjunction with the Southern Africa Litigation Centre (SALC), which had legally challenged the South African government in June 2015 for failing to arrest President Omar al-Bashir of Sudan while he was visiting South Africa.<\/p>\n
The ICC has issued warrants of arrest for the Sudanese leader to answer charges of genocide and war crimes allegedly committed in Sudan\u2019s Darfur region. According to the Rome Statute of the ICC, member states are obliged to arrest anyone for whom a warrant of arrest has been issued.<\/p>\n
This was why the SALC decided to pursue the arrest of President al-Bashir through the courts while he was in South Africa, although he left before the case could be heard. The court eventually accused the government of \u201cdisgraceful conduct\u201d for failing to apprehend President al-Bashir.<\/p>\n
In the ICC withdrawal case, the SALC argued that the South Africa constitution, among other things, \u201cimposes an obligation on government to obtain prior parliamentary approval before withdrawing from any international agreement\u201d.<\/p>\n
The SALC also challenged the government\u2019s decision to withdraw from the ICC \u201cwithout establishing a legal framework to deal with pending or ongoing cases and investigations\u201d.<\/p>\n
It added that the withdrawal move was \u201cirrational\u201d and had \u201cbeen taken in bad faith\u201d.<\/p>\n
After the court ruling, SALC Executive Director Kaajal Ramjathan-Keogh said: \u201cWe are delighted that the court has recognised and corrected this failing on the part of government.<\/p>\n
\u201cUnilateral executive action which is not in line with the constitution will not be tolerated. \u201cWhile we are mindful that it is the prerogative of the state to enter into international agreements, it is also important to realise the supremacy of the constitution. \u00a0The executive cannot simply exit an international agreement in our constitutional democracy because, as the court has rightly held, such a process requires prior parliamentary approval.<\/p>\n
\u201cThis is a sound judgment and it would be unfortunate if [the] government decides to appeal. This decision confirms that our courts, while recognising and respecting the separation of powers doctrine, are willing to take bold steps to ensure that the executive does not overstep its role\u201d, Ramjathan-Keogh added.<\/p>\n