Analysis of the High Court’s decision to invalidate South Africa’s notice of withdrawal from the Rome Statute: why and whereto from now?
15 Mar 2017
In February 2017 the High Court of South Africa Gauteng Division, Pretoria, handed down an order declaring South Africa’s notice of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) unconstitutional and invalid. The notice of withdrawal had been signed and delivered to the United Nations (UN) Secretary General by the Minister of International Relations and Cooperation in October 2016, without having obtained parliamentary approval. Whether in the coming months, following a constitutional democratic process through parliament will result in South Africa still withdrawing from the Rome Statute remains to be seen.
SOUTH AFRICA AND THE ROME STATUTE
The International Criminal Court (ICC) was established in 1998 by the conclusion of the Rome Statute. South Africa was one of the first signatories to the Statute, and was subsequently joined by 124 other countries. The Rome Statue was ratified by the South African parliament in 2000, and implemented in 2002, under the Implementation of the Rome Statute of the International Court Act, 2002 (the Act).
THE AL BASHIR INCIDENT
Sudanese President, Omar al-Bashir, was the subject of arrest warrants issued by the ICC in 2009 and 2010, in respect of charges, which include crimes against humanity, extermination, torture, rape and genocide, committed between 2003 and 2008 in Darfur. These warrants placed significant strictures on Al-Bashir’s movements, as the terms of the Rome Statute required member states to arrest Al-Bashir should he enter their territory.
In 2015 the South African government failed to arrest Al-Bashir as he attended an African Union summit in South Africa, despite its statutory obligations and an order of the High Court ordering compliance therewith. This failure, which was ultimately found to be in contravention of the Act and of the Constitution, was followed by a government decision to withdraw from the Rome Statute. This decision was followed by a notice of withdrawal, signed and delivered to the UN Secretary General in October 2016 (the notice). Parliament was later notified of this action, and informed by the Minister of Justice that he intended to table a bill repealing the Act.
Shortly after the government’s announcement of withdrawal, the Democratic Alliance (DA) launched a Court application challenging the signing and delivery of the notice. The High Court (Court) application was heard on 5 and 6 November 2016. The DA’s application was filed against the Ministers of International Relations and Cooperation; and Justice and Correctional Services, the President, the Speaker of the National Assembly and the Chair of the National Council of Provinces. The Ministers and the President (the Government) opposed the application while the Speaker and the Chair chose to abide.
The crux of the DA’s argument lay in the claim that because section 231(2) of the Constitution necessitates the approval of parliament, it is implied that parliament must be the organ of state that decides whether an international agreement ceases to bind the country. In terms of the DA’s argument, the notice of withdrawal would only be lawful if parliament had approved the withdrawal and repealed the (ratifying) Act.
The Government argued that prior parliamentary approval was not a requirement of section 231, because there was no express provision requiring such. This argument was supplemented by several other reasons, which included the claim that treaty-making (and thus treaty withdrawal) is the exclusive competency of the executive and that the implicitness of the prior approval in section 231, as argued by the DA, should not be lightly implied. Even so, the Government argued, the question of parliamentary approval does not arise as such approval was in the process of being obtained.
HIGH COURT ANALYSIS
The Court’s analysis of the arguments is, for the most part, clear and well-reasoned, focusing on rationality and procedural rationality, and concluding that “South Africa can withdraw from the Rome Statute only on approval of parliament and after the repeal of the Implementation Act”. Following this, however, the Court’s analysis takes an odd turn, addressing the absence of a termination clause in section 231 or any other legislation.
The Court started by agreeing that the power to conduct international relations and to conclude treaties lies with the executive. The Court qualified this point by adding that the executive’s powers in terms of section 231(1) were fettered by sections 231(2) and (4) which required that any international agreement, entered into by the executive, must be approved by parliament in order to make it binding on South Africa, and that this process of ratification be completed by parliament enacting national legislation to give effect, domestically, to the rights and obligations set out in the international agreement.
The Court held that the signing and delivery of the notice was not the equivalent of negotiating and signing a treaty. The negotiation and signing of a treaty has no direct legal effect on South Africa, whereas the notice of withdrawal constitutes a binding and unconditional decision of withdrawal from the Rome Statute. The Court further found that the approval of an international agreement in terms of s 231(2) creates a contract between the people of South Africa, through their elected representatives in parliament, which gives rise to the rights and obligations expressed in the international agreement. The executive cannot, without first seeking the approval of the people of South Africa, terminate those rights and obligations. To do so amounted to a violation of the separation of powers doctrine. Referencing Masethla, the Court added that where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well. Thus, the Court held that on a textual reading of section 231(2), the executive may withdraw from the Rome Statute, but only on the approval of parliament and only after repeal of the Act. With reference to Simelane, the Court added that the Government’s actions in signing and delivering the notice were procedurally irrational, as the steps taken were not rationally related to the end sought to be achieved. This end, as set out in an explanatory statement attached to the notice, was withdrawal from the Rome Statute, so that the Government would be free to pursue its peacemaker role on the continent without the obligation to arrest indicted heads of state.
However, the enactment of the Implementation Act created peremptory obligations which bind South Africa on its own terms, independent of the Rome Statute. What the Government’s actions would achieve is the termination of international obligations but not of its domestic obligations to arrest indicted heads of state.
The signing and delivery of the notice of withdrawal prior to the approval of parliament and the repeal of the Implementation was held to be procedurally irrational, unconstitutional and invalid and as the Court reiterated “‘[a]n invalid act, being a nullity, cannot be ratified, ‘validated’ or amended” by a post parliamentary approval and repeal of the Act.
Instead of ending the analysis here, the Court, at paragraphs 54 to 56, goes on a frolic of its own interpreting the omission of a termination clause in section 231 in a manner that (unintentionally, I assume) contradicts its conclusion on procedural irrationality. In essence the Court reasons that because the executive can exercise only those powers and perform only those functions conferred upon it by the Constitution, or by other legislation, the absence, of a provision authorising the executive to terminate international agreements confirms that such power does not exist “unless and until parliament legislates for it”. This changes the basis of the illegality, from procedural irrationality, to ultra-vires. What this implies is that if there were any piece of legislation (for example the Act), which empowered the executive to terminate international agreements; the executive would legally be able to do so without the approval of parliament, and without repealing any ratifying act. This interpretation is certainly contrary to the checks-and-balances procedure envisaged in section 231 of the Constitution.
The Court concludes correctly that the signing and delivery of the notice, without the prior approval of parliament and the repeal of the Act, was procedurally irrational, unconstitutional and invalid, and that a retrospective approval and repeal will not remedy an invalid act. However, it also creates unnecessary confusion of the executive’s powers and the purpose of the “deliberate constitutional scheme” that is section 231. In remedying the invalid action the Court issued a declaration of invalidity with retrospective effect and ordered the Government to revoke the notice. The Government obliged and on 8 March 2016, the notice was revoked.
Now that the decision of withdrawal is in the hands of parliament, who have to openly deliberate and publicly consult, it remains to be seen whether following a constitutional democratic process may lead to a different result.(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)