Not even close, Mr President

Jacob Zuma.

Just about a year ago, the North Gauteng High Court dismissed the State’s application for leave to appeal in the Al-Bashir matter, and the gnashing of teeth which followed, was the pre-cursor to what happened on Friday: the South African government, more specifically, the executive, served notice on the secretary-general of the United Nations (UN), that it would be withdrawing from the Rome Statute.

In typical silent and behind-the-scenes fashion, Jacob Zuma has once more steepened the slope down which we, as a country, slide toward ignominy.

The UN has acknowledged receipt of the notice of withdrawal, replying that it will come into effect one year hence, on Wednesday October 19, in accordance with the provisions of Article 127 of the Rome Statute.

The justification of the withdrawal offered by Justice Minister Michael Masutha, to whom fell the unenviable task of telling world media that in future we will be able to safely host genocidal war criminals without the inconvenient threat of their imminent arrest, that being a state party to the Rome Statute compromises our continental foreign policy and peace initiatives, is little short of disingenuous.

Whereas our continental foreign policy priorities are largely economic, where we have engaged in peace initiatives – Lesotho and South Sudan come to mind – our efforts have hardly been compromised by a dearth of domestic diplomatic immunity.

Besides, such “inconvenience” may be sidestepped by the simple expedient of engaging in such initiatives elsewhere, in jurisdictions that ignore the canons of international law which endeavour to make the world a safer and better place.

Mr Masutha’s threadbare arguments are unconvincing, because the truth is a matter of public record: the ruling party and our president believe that it is more important to be on good terms with other African heads of state, than it is to continue to be the beacon of human rights that we became when we wrote and ratified our much-revered Constitution.

But is it simply a matter of the executive instructing the department of justice to invoke Article 127 of the Rome Statute for our withdrawal to be a fait accompli?

If you listen to chief state law advisor Enver Daniels, you’d be inclined to believe it to be so, except that in its recent Nkandla ruling, the Constitutional Court noted that following the wrong legal advice – a central pillar of Mr Zuma’s defence – does not excuse you from perfidy for which you are accountable.

It may well be the prerogative of the executive to commit the State to such international instruments as Mr Masutha suggests, but it is the business of Parliament to cod-
ify the tenets of such instruments in domestic law, as provided for
in Section 231(2) of the Constitution.

That codification, an absolute requirement of the Rome Statute, is enshrined in the International Criminal Court Act (Act 27) of

Whereas the executive may constitutionally commit South Africa as a state party to the Rome Statute, it requires an act of Parliament to give effect to that commitment, and the converse therefore, also applies.

In order for South Africa to legally withdraw from the Rome Statute, the executive may well exercise its prerogative to serve notice to withdraw, but it is up to Parliament to give effect to that withdrawal by repealing Act 27 of 2002.

Until such time as the repealing act is signed into law, and most certainly for the next 12 months, we are bound to honour our legal obligations in terms of Article 86 of the Rome Statute:

“States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the court [ICC] in its investigation and prosecution of crimes within the jurisdiction of the Court.”

Further, once our withdrawal comes into effect, we remain bound in perpetuity in terms of Article 127(2) to honour Article 86, in respect of any matter under consideration by the ICC, at the date of withdrawal, which reads as follows:

“Its [A State’s] withdrawal shall not affect any cooperation
with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the
withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Omar Al-Bashir may never again set foot on our sovereign soil without facing arrest and extradition for trial by the ICC, but what are the chances of South Africa ever honouring its perpetual obligations in this regard, particularly under the present government?