'Hasty, irrational and unconstitutional': High Court's damning verdict on SA's ICC withdrawal

Court rules SA's notice of withdrawal from ICC is unconstitutional

South Africa announced in October that it would be pulling out of the court following a dispute over the failure to arrest Sudanese President Omar al-Bashir, who visited the country in 2015 despite an arrest warrant from the ICC over alleged war crimes.

The North Gauteng High Court has ruled in favour of the Democratic Alliance's (DA) court bid that government's notice of withdrawal from the International Criminal Court (ICC) without Parliament's approval is invalid and unconstitutional.

Zuma's Justice Minister Michael Masutha said he would forge ahead with its decision to leave the ICC, as the court only struck the decision down based on procedural rules.

As government deliberates on a damning court finding around another unconstitutional decision, this time related to the International Criminal Court (ICC), the ruling has been welcomed by some political parties as a victory for the rule of law. South Africa resisted pressure to arrest him, arguing he had diplomatic immunity.

Wednesday's decision in Pretoria high court was largely expected as Mojapelo had already told government lawyers during a previous hearing that he was concerned that officials had exceeded their constitutional powers. While the executive branch has unfettered power to enter into worldwide treaties, in its precedent-setting judgment the court found that it can not withdraw from those same treaties without legislative approval.

The high court has ordered government to revoke the notice of withdrawal. The government said it will study the ruling and decide whether to appeal.

The court ruled that the withdrawal was unconstitutional and invalid.

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At a minimum, the ruling will delay South Africa's withdrawal from the ICC, which had been scheduled to take effect in October.

Government argued it was Cabinet's decision to approve the notice of withdrawal from the Rome Statute, insisting South Africa's obligation under the Rome Statute had impeded peacekeeping and peace negotiations.

The DA contended that parliament's approval was required before the notice could be delivered to the UN. However, newly elected Gambian President Adama Barrow has said he will reverse his predecessor's decision and keep the country in the ICC. It criticized the government for trying to "steamroll" over the constitution.

It's an important ruling for worldwide justice both in South Africa and beyond.

Burundi announced its intention to leave the ICC a year ago.

"South Africa is now out of step with other progressive and democratic African countries who have reaffirmed their commitment to the ICC", the DA said in a statement.

Human rights activists feared if South Africa, one of Africa's most politically and economically powerful countries, left the legal body, other countries would follow suit.

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