Johannesburg, October 24 – On 19th October 2016, the South African government submitted its Instrument of Withdrawal to the United Nations Secretary General seeking to commence the process of withdrawal from the Rome Statute. Justice Minister Masutha then announced that the Constitutional Court case Minister of Justice and others v the Southern Africa Litigation Centre, otherwise known as the Bashir case would “now be withdrawn”. He failed to consider that the State cannot unilaterally withdraw from a Constitutional Court case, instead the rules of the Constitutional Court must be followed.
On Sunday 23rd October, the Democratic Alliance (DA) electronically served legal papers challenging the constitutionality of the government’s instrument of withdrawal and citing all parties to the Bashir case. As a party to the Bashir case and in the interest of protecting international justice and the victims of egregious crimes, SALC will participate as an independent party in the case brought by the DA.
The Bashir Case
The push for withdrawal began after the arrival of Sudanese President Bashir in South Africa. In June 2015, President Omar al Bashir arrived in South Africa triggering South Africa’s domestic and international law duty to arrest him for subsequent transfer to The Hague. President Bashir is wanted for war crimes, genocide and crimes against humanity and there are two international arrest warrants, issued in 2009 and 2010 respectively. The 2009 ICC arrest warrant was domestically endorsed in South Africa.
Despite existing arrest warrants President Bashir was not arrested, forcing SALC to approach the North Gauteng High Court on an urgent basis seeking the implementation of the arrest warrants. The High Court issued an interim order to ensure President Bashir remained in the country pending the finalisation of the legal proceedings and later ordered that he be immediately arrested. The South African government allowed President Bashir to leave despite the court order. The government took the matter on appeal to the Supreme Court of Appeal where the SCA also ruled that failure to arrest Bashir was unlawful. Convinced that another court would arrive at a different conclusion, the state took the matter on a further appeal to the Constitutional Court.
The Constitutional Court matter is to be heard on 22nd November. The state has announced its intention to withdraw this case yet, withdrawal must be conducted in terms of the Constitutional Court Rule 27, which states that “Whenever all parties, at any stage of the proceedings, lodge with the Registrar an agreement in writing that a case be withdrawn… the Registrar shall, if the Chief Justice so directs, enter such withdrawal, whereupon the Court shall no longer be seized of the matter.”
SALC intends to challenge the South African government’s attempts to withdraw from the Constitutional Court case as matters of international and domestic criminal justice warrant the attention of the highest court in the country.
Challenging the constitutionality of the purported withdrawal from the ICC
The DA’s case challenges the procedural constitutionality and rationality of the states’ withdrawal from the Rome Statute. SALC has been cited together with all parties to the Bashir Constitutional Court case. SALC will be making representations to ensure that the voice of civil society is heard.
“The state cannot be allowed to act with little or no regard for the rule of law and the Constitution. South Africa should be at the forefront of protecting human rights and fighting for justice for victims of genocide, war crimes and crimes against humanity,” said Kaajal Ramjathan-Keogh, executive director of SALC, “instead the government has sided with suspected perpetrators and brought the nation’s reputation into disrepute. This must be rigorously challenged.”
In line with its mandate, SALC seeks to protect and promote human rights through strategic litigation and will seize this opportunity to ensure that the legislative framework that governs the prosecution of egregious crimes is protected which will in turn ensure that victims have access to justice.
Whilst SALC believes that justice is better served domestically, SALC also believes firmly in supporting international criminal justice which includes supporting and critically engaging with the ICC. Whilst the ICC is imperfect and in need of reform, it requires its member states to constructively engage as opposed to merely abandoning it. South Africa should be at the forefront of engagement with the Court and proactive in the fight against impunity.