NEWS & ANALYSIS

ICC: DA files papers with ConCourt – Mmusi Maimane

Party says notice of withdrawal was delivered without consulting with Parliament

ICC: DA files papers with ConCourt 

24 October 2016

The Democratic Alliance (DA) has today filed its founding affidavit for direct access to the Constitutional Court, in order to challenge the constitutionality of the South African Government’s notice to initiate the process of withdrawing from the Rome Statute of the International Criminal Court (ICC).

The South African Government delivered the notice of withdrawal without consulting with Parliament, the only body that can give the Executive a mandate to withdraw from the ICC given the domestic legislative implications such a decision has.

Withdrawing from the  ICC would require Parliament, specifically the National Assembly, to repeal the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (“Implementation Act”), which incorporates the Rome Statute into domestic law.   

We therefore argue, in defence of the Constitution and the Rule of Law that:

- The notice of withdrawal is in breach of section 231(2) of the Constitution, as it was delivered without first securing a resolution of Parliament authorising South Africa’s withdrawal from the Rome Statute;

- It was unconstitutional and unlawful to deliver the notice of withdrawal prior to Parliament having first decided to repeal the Implementation Act;

- The notice of withdrawal is procedurally irrational, as it was delivered without any process of consultation with Parliament and the public; and

- The notice of withdrawal is a breach of the state’s section 7(2) duty to respect, protect, promote and fulfil the rights contained in the Bill of Rights.

- Government has acted with haste and in antithesis with the democratic principles of transparency and consultation, this therefore forces us to ask the question: is the South African Government committed to justice and human rights? 

This is a retrogressive measure, as withdrawal from the Rome Statute will substantially weaken the protections afforded to the rights of South African citizens and foreign citizens alike.

As the DA, we will not cross our arms while the ANC-led South African Government tears away at the values contained in the Bill of Rights and compromises the foundations of our constitutional democracy.

Issued by Mabine Seabe, Spokesperson to the DA Leader, 24 October 2016