Judgment on the Government's attempted withdrawal from the ICC

North Gauteng High Court Judgment in Democratic Alliance v Minister of International Relations and Cooperation & Others case no: 83145/2016

Feb 22, 2017

The matter of Democratic Alliance v Minister of International Relations and Cooperation & Others (Case no: 83145/2016) was heard by a Full Bench of the North Gauteng High Court on 5 and 6 December 2016. The Helen Suzman Foundation was cited as a respondent and supported the application made by the DA. The application requested that the decision of the executive to withdraw from the International Criminal Court, as well as the Notice of Withdrawal sent to the United Nations Secretary-General, be set aside as unconstitutional and invalid.

On 22 February 2017, the North Gauteng High Court handed down judgment in favour of the DA. The Court found that the notice of withdrawal from the Rome Statute of the ICC, without prior parliamentary approval, is unconstitutional and invalid. It also found that the decision of the cabinet to deliver the notice of withdrawal to the UN Secretary-General, without prior parliamentary approval, is unconstitutional and invalid. The national executive’s decision has violated Section 231(2) of the Constitution and breached the separation of powers doctrine. The Court therefore ordered the Government to revoke the notice of withdrawal.

The Court made its decision only on the basis of procedural issues and declined to pronounce on the substantive merits of the matter. In other words, the Court considered only the fact that prior parliamentary approval had not been obtained and not whether the content of the bill that has been presented and the actual withdrawal, is lawful.

Essentially, the executive will now have to begin the process of withdrawal afresh, if they still wish to do so, and this time they would need to obtain Parliament’s approval prior to taking any action. The Government further has the option of taking the judgment on appeal, which will have the effect of temporarily suspending the order. It remains to be seen what the government will decide to do.

The HSF welcomes the judgment as it upholds the rule of law and our Constitution.

For the judgment [here]

Statement issued by the Helen Suzman Foundation, 22 February 2017