South Africa's decision to leave International Criminal Court unconstitutional says High Court

Pretoria said a year ago it planned to leave the ICC after receiving criticism for ignoring the court's order to arrest the visiting Sudanese president, Omar Hassan al-Bashir, who is accused of genocide and war crimes, in June 2015.

The ICC issued an arrest warrant for Mr al-Bashir in 2009 after charging him with five counts of crimes against humanity.

A High Court in South Africa had earlier ruled that the country's decision to withdraw from the ICC is unconstitutional.

Opposition party Democratic Alliance, which took the government to court, argued that Minister Michael Masutha acted unlawfully by announcing the withdrawal without seeking parliamentary approval. The advocacy group has argued for South Africa to remain in the ICC.

United Nations secretary-general Antonio Guterres said he welcomed Gambia's decision and expressed hope that the court's members "will continue to further strengthen the court through a constructive dialogue".

Sitting in the high court in Pretoria, deputy judge president Phineas Mojapelo said on Wednesday that any move to pull out of the ICC must be "on the basis of the expressed authority of the constitution".

"What is so pressing for the national executive about the withdrawal from the Rome Statute which can not wait for our legislative processes (and possibly judicial pronouncements) to take their course?" the ruling read.

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South Africa had officially notified the United nations of its intention to withdraw from the Rome statute and 1998 treaty establishing the Hague-based court. New Gambian President Adama Barrow, who was inaugurated in January, told Newsweek that he would reverse former Gambian President Yahya Jammeh's decision. It criticized the government for trying to "steamroll" over the constitution.

The DA contended that parliament's approval was required before the notice could be delivered to the UN.

South Africa is not the only country that have announced to exit the ICC, Burundi and Gambia in the days of Yahaya Jameh has announced to leave.

South Africa said it was quitting the ICC because membership conflicted with diplomatic immunity laws.

The ruling will be seen by many as a victory for human rights in Africa, at a time when they appear under threat.

The issue may also be a factor in the run-up to and aftermath of the ruling African National Congress's internal leadership vote in December this year.

  • Marjorie Miles