Why Pretoria court ruling may have just shielded ICC from further assault

South African President Jacob Zuma (left) and his Kenyan counterpart Uhuru Kenyatta have been driving anti-ICC campaigns in Africa. PHOTO | FILE 

By Wachira Maina

On Wednesday last week, South African President Jacob Zuma’s attempt to pull South Africa out of the International Criminal Court dramatically foundered in the High Court in Pretoria.

A unanimous court ruled the government’s notice to withdraw from the Rome Statute irrational and invalid; held that any notice to withdraw from the ICC not approved by parliament would be invalid and ordered the notice withdrawn immediately.

This decision, which the South African government may yet appeal, will reverberate throughout the continent. Since the court ordered the government to arrest and surrender to the ICC the President of Sudan, Omar Hassan Ahmad al-Bashir, in June 2015, President Zuma has become one of Africa’s most vociferous opponents of the ICC, joining Kenya’s President Uhuru Kenyatta in a campaign for withdrawal that seems egregiously self-serving.

The decision will discomfit the Uhuru government: The 2010 Constitution has even stronger provisions than the South African Constitution regarding the place of international law in Kenyan law. This means that should Kenyan courts borrow from this case, President’s Uhuru’s threat to ditch the Rome Statute could soon prove futile.

How did the South African court arrive at this decision and how will it play out elsewhere?

Central to the decision was the court’s reading of how the South African Constitution splits the power to make treaties between the executive and the parliament.

Two questions were in play; One, does the president’s power to make treaties also include the power to withdraw from those treaties without parliament approving the withdrawal?

Two, ancillary to the first question, can the executive give notice to withdraw from an international treaty before parliament has approved the notice itself and repealed the domestic law that gives effect to the treaty?

Two ICC warrants

To see the issue in perspective, start with the background. The trigger for President Zuma’s now seemingly hasty decision to withdraw from the ICC was his government’s decision not to arrest President Bashir when ordered to do so by the court in 2015. President Bashir was in South Africa for an African Union Summit.

The court ordered the government to stop him from leaving pending the decision in an urgent case filed by the Southern Africa Litigation Centre, an NGO. The NGO had asked the court to rescind a government decision that granted immunity to all delegates at the meeting.

With court proceedings underway, President Zuma allowed President Bashir to leave, leaving a South African judge, Dunstan Mlambo, complaining about conduct “inconsistent with the Constitution.”

At issue are two ICC warrants against President Bashir for serious violations of international law, including claims that he was involved in genocide, war crimes and crimes against humanity driving the war in Darfur. The ICC had sent these warrants to all the state parties to the Rome Statute, South Africa included requiring them to arrest President Bashir if he should happen by.

With President Bashir safely out of South Africa, the government argued that he had immunity under international law. The court disagreed and held that by refusing to arrest President Bashir the government had acted against the Constitution.

A month before an appeal to the Constitutional Court could be heard, the government filed a notice of its intention to withdraw from the ICC. Such a notice is filed in terms of Article 127(1) of the Rome Statute — which South Africa ratified on November 27, 2000.

Notice to withdraw

A state party to the Rome Statute ceases to be a member of the ICC 12 months after filing the notice to withdraw. This means that South Africa would have ceased to be state party to the Rome statute in October 2017.

It is this notice that was at issue in this case, filed by the Democratic Alliance (DA), South Africa’s largest opposition party. The Democratic Alliance challenged the notice as unconstitutional and invalid and asked the court to order the government to withdraw it.

The government argued that it had to withdraw from the ICC because of an irreconcilable conflict of obligations.

The conflicts arose between its duties in international law and what it termed “hard diplomatic realities.”

The government had a duty to arrest President Bashir under the Rome Statute but this was in conflict with its duty to the AU to grant him immunity in terms of the Host Agreement, and the General Convention on the Privileges and Immunities of the Organisation of African Unity of 1965.

The Host Agreement requires a country that hosts an international body — here the AU — to give access to all that need to visit for meetings of that body. According to South Africa, these mutually hostile duties had put the government in an unenviable position; undermined South Africa’s role as regional peace-maker and, specifically, put at risk its efforts to promote “peace, stability and dialogue” in Sudan.

As a preliminary matter, the Zuma administration also tried to stop the case on four technical points. To begin with, it said, the issue was now before parliament and was just about to be debated: for the court to consider it at all would be a travesty of the separation of powers, a case of judicial overreach.

Two, the government had engaged the ICC on the issue, implying that other options were still open.

Three, the notice to withdraw would not take effect till October 2017, and so long as matters stood that way, South Africa could still defer the decision to withdraw. Finally, the government still had the grandfather option to revoke the notice itself.

The cumulative effect of these points, the government argued, was that the illegality that the Democratic Alliance was challenging in court had, in fact, not occurred yet.

The Court disagreed. Cutting through the fog of technicalities, the court summarised the issue in question as follows:

What it had to decide was not the constitutionality of the actual withdrawal but the narrow point whether the government’s notice to withdraw from the ICC without a prior vote from parliament was constitutionally valid in the first place.

The court then turned to the weightier issues involved; how to read the treaty-making powers of the South African government. On this, the judges reached three conclusions.

Executive powers

One, the power to conclude treaties unambiguously lies with the executive.

Second, that power though unambiguous was not unlimited, since the Constitution was explicit that parliament had to approve a treaty before it could bind the country.

Third, even if a treaty was binding on South Africa, it created rights and obligations that citizens could enforce in South African courts, only when it were enacted as national law.

The issue now was what the steps for withdrawing from a treaty were.

According to the government, the reverse process should follow the same steps: The executive gives notice to withdraw and then asks parliament to approve the withdrawal.

The court disagreed. It pointed out that legally speaking signing a treaty is not the same as giving a notice to withdraw.

This is because signing a treaty creates no legal obligations until parliament approves it. However, a notice to withdraw creates legal obligations as soon as it is filed with the relevant body.

Under South African law, the president has no power to create legal obligations through treaties without a supporting vote by parliament.

The constitutional point, the emphasised, lay in this: treaty-making may be an executive act but that should never mask the reality that it is still “an exercise in public power” that is “subject to constitutional control.”

The power to decide whether South Africa should remain bound by a treaty that parliament has approved lies with parliament, it is a separation of powers issue and the president acts illegally if he unilaterally decides to terminate obligations created by the treaty.

The South African government had an additional makeweight argument.

It also argued that the text of the Constitution had set out no method for withdrawing from international treaties. This implied, it suggested, that the executive had a choice of means. The court turned that argument on its head by saying that as a matter of constitutional law, a government has only those powers it has been given by law.

The fact that the Constitution does not give the government the power to terminate international agreements is proof that such a power does not exist unless parliament makes a law giving such power.

There was also the issue of public participation. Like the Kenya Constitution, that of South Africa imposes a duty on parliament to involve the public in law-making. One of the effects of the decision to withdraw from ICC without seeking a vote from parliament was that the decision excluded the public.

This too was unconstitutional. According to the leading on the point, Doctors for Life International v Speaker of the National Assembly and Others, public participation is not only mandatory, it must also be meaningful. Participation strengthens South African democracy by producing laws “that are likely to be widely accepted and effective.” It is also increases the openness of the law-making process, reducing the role of “secret lobbying and influence peddling.”

The gravamen of the court’s argument on this point was that a notice to withdraw from ICC would be ineffective so long as the government had not repealed the local statute that implemented Rome Statute in South Africa.

Local statute

This is because the duty to arrest President Bashir was required by both the Rome Statute and also by the local statute that enforced the Rome Statute.

By force of argument, the court said, a South African statute could not be repealed without public participation and so South Africa could not withdraw from the ICC without public participation.

All this will make disconcerting reading for the Uhuru administration, which had been clearly energised by South Africa’s decision to ditch the ICC.

This decision will weaken President Zuma’s value as President Kenyatta’s ally at the AU, since President Zuma can no longer vociferate in an international arena on an issue that South African courts have already termed unconstitutional.

Of course, President Zuma may contest this by appeal but if he loses in the higher courts, he would have substantially frittered away his political capital. This could leave him exposed in parliament and erode his ability to mobilise the ANC to approve the decision to withdraw from the Rome Statute altogether.

So far, he has not had an easy time with the ANC leadership on a host of other unrelated issues and his advisers may counsel prudence, advising that he conserve the little political capital he still has for political survival. If South Africa then abandons its bid to withdraw, Kenya would find itself isolated.

Unfortunately, some of the ICC’s most implacable opponents and Kenya’s loudest supporters- Rwanda, for instance — are not even state parties to the Rome statute. Meaning that though their support is good rhetoric, it is little else.

But there is also what this case could mean for activists in Kenya. Potentially, they have a stronger case to stop Kenya’s efforts to withdraw from ICC than the Democratic Alliance did in South Africa. The language of the Constitution is particularly strong. It says that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

The International Crime Act

The courts have already ruled on the implications of this but even if they had not, Kenya also enacted the International Crimes Act in 2008 to implement the Rome Statute.

There is, of course, a pending draft Bill to repeal this Act and so to initiate the steps for Kenya to get out of ICC. The problem is that the public must — as in South Africa — be involved in that repeal. That means that whatever the result, a person could still go to court to ask it to decide whether the threshold for participation has been met.

The effects are potentially far-reaching. It is doubtful that without South African leadership Kenya can pull off a mass walkout from the ICC.

Three judges in a high court in Pretoria may just have saved the Rome Statute, a real fillip to those who believe in international justice for victims of state violence.
 Wachira Maina is a constitutional lawyer bases in Nairobi,