​ICC case shows executive can’t act unilaterally

President Jacob Zuma allowed Sudan’s Omar al-Bashir to leave South Africa in 2015 despite an arrest warrant issued by the ICC, the same court government has since tried to leave. (Reuters)

President Jacob Zuma allowed Sudan’s Omar al-Bashir to leave South Africa in 2015 despite an arrest warrant issued by the ICC, the same court government has since tried to leave. (Reuters)

Identity politics continues to engulf South Africa in ever-increasingly virulent ways. Last year it was the universities that bore the brunt of a politics that threatened the very idea of a fresh South African identity in which it might be claimed that South Africa belongs to all who live in it.

This past week has seen a return to the xenophobia that claims superiority for South Africans over other Africans. What makes the present wave of hatred even more disturbing is the response of the government, which has hardly been firm against naked prejudice directed against various African communities.

Contrast this ambivalence to the full-throated support government offered Sudanese President Omar al-Bashir, against whom warrants of arrest for war crimes have been issued by the International Criminal Court (ICC). Defenceless Sudanese, Ethiopians and Nigerians must seek shelter in precarious conditions in this country, but al-Bashir gets the full support of the government.

At the same time as this disturbing schizophrenia in our public life was being played out, the government suffered a further defeat in the courts following its decision to leave the ICC. The government had decided that it could exit the ICC by way of executive action, even though the commitment to the ICC had been enshrined in legislation passed by Parliament. This decision became the focus of the latest challenge to government’s move away from adherence, at the very least, to the spirit, purport and objectives of the Constitution.

The Democratic Alliance, together with the Council for the Advancement of the Constitution, argued that, because in terms of section 231(2) of the Constitution, Parliament must approve an international agreement before it may bind South Africa, it followed that it must be Parliament that decides whether an international agreement ceases to bind the country before the executive may deliver a notice of withdrawal.

In other words, Parliament had to repeal the implementation of the 2002 Rome Statute of the ICC.

In response, the government raised a series of related arguments. It contended in the first place that because it is the national executive’s, not Parliament’s, primary role in international relations to conclude treaties, the legal requirement (prior to approval by Parliament) not being explicit in the Constitution, should not be lightly implied or read into the Constitution.

Further, it argued, because the original function of concluding treaties is not that of Parliament but of the national executive, parliamentary approval is only required for a concluded treaty to become binding. The agreement to conclude a treaty remains the function of the national executive. Ratification by Parliament means no more than formal confirmation of consensus expressed by the executive.

The state argued that undoing a treaty lies in the powers of the national executive and does not need parliamentary approval. Parliamentary approval relates to the binding effect of a concluded treaty. Much as concluding a treaty is a core function of foreign relations, within the competence of the national executive, cancelling the country’s obligations under a treaty is also within the constitutional competence of the executive.

A unanimous court of three judges of the high court in Gauteng disagreed. The reasoning of the court is captured in the following passage from the judgment: “As the Constitutional Court explained in Glenister II a resolution by Parliament in terms of s231(2) to approve an international agreement is a positive statement … to the signatories of that agreement that Parliament, subject to the provisions of the Constitution, will act in accordance with the ratified agreement. Therefore, the approval of an international agreement in terms of s231(2) creates a social contract between the people of South Africa, through their elected representatives in the legislature, and the national executive. That social contract gives rise to the rights and obligations expressed in such international agreement. The anomaly that the national executive can, without first seeking the approval of the people of South Africa, terminate those rights and obligations, is self-evident and manifest.”

In summary, the court correctly found that the executive requires prior parliamentary approval to bind South Africa to an international agreement, and there was no reason why the withdrawal from such an agreement should be different. The executive did not have the legal power to deliver the notice of withdrawal without obtaining prior parliamentary approval.

Because the necessary legislation had not been introduced in Parliament, the court was not willing to entertain a substantive challenge about whether it was legal to withdraw from the Rome Statute.

Here the court was very careful in the demarcation of its role: “That decision [to withdraw] is policy-laden, and one residing in the heartland of the national executive in the exercise of foreign policy, international relations and treaty-making, subject, of course, to the Constitution.”

The upshot is that, in the absence of a successful appeal, the executive will be required to present relevant legislation to Parliament. That is clearly as it should be.

Only two implications should be drawn from this judgment. First, the executive, seemingly more interested in protecting alleged criminals than promoting the human rights of all Africans, must now subject its proposed action to legislative scrutiny and hence open up the debate.

Second, who advises the government? Yet again it has come short in the courts in a case only the hopelessly optimistic would think it could have won.

Serjeant at the Bar