International Criminal Court - Rome Statute; Extradition Treaty Between USA & SA; Mutual Legal Assistance Treaty: voting

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Justice and Correctional Services

31 October 2000
Chairperson: Mr JH De Lange
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Meeting Summary

The Committee unanimously voted in favour of the ratification of:
- Rome Statute of the International Criminal Court;
- Extradition Treaty between Governments of the Republic South Africa and the United States of America; and
- Treaty of Mutual Legal Assistance in Criminal Matters between the Governments of RSA and USA.

The Committee passed the remuneration, allowances and conditions of employment determined by the Public Protector for the staff of his office.

All the other business before the Committee was left to stand over for next year when the Committee returns from recess in early February. These are: the Administration of Estates Bill; the Institution of Legal Proceedings against Organs of State Bill; the Protocol on the Establishment of the African Court on Human and Peoples' Rights; the Protocols to the International Covenant on Civil and Political Rights; and the issue of the suspended Magistrates. Early next year the Committee, jointly with the Department of Finance, will be considering the Financial Centre on Intelligence Bill which is aimed at countering money laundering.

Meeting report

Institution of Legal Proceedings Bill
The Chairperson said the Institution of Legal Proceedings Bill has been removed from the agenda because the Department is not ready with it yet. He said an appeal has been made to the NCOP to hold back passing the Bill until the department has finalised changes [The Bill had been passed by the National Assembly but was in the process of being considered by the National Council of Provinces, the Department wishes to harmonise the prescription periods in both contractual and delictual matters. As the Bill stands, the definition of debt excludes contractual matters; the definition will be changed to cause of action so that only the giving of notice applies to delictual claims.]

Administration of Estates Bill
This Bill will also be kept in abeyance to be dealt with together with the rationalisation of the Master's Office and Superior Courts.

Suspension of two magistrates
Regarding issue of the Magistrate's Commission, the Chairperson said the Committee had received an opinion and the first aspect (which he does not think is right) says they should rehear the issue. The second part of the opinion is wrong because the opinion was done on the assumption that it should be lodged with Parliament within 30 days while this was supposed to be 14 days. He said this issue would have to stand over as well while the legal advisors do another opinion.

Rome Statute of the International Criminal Court
The Chairperson noted that no one has yet raised any problems with the Statute.

Mr Mathee asked how Professor Rwelamira sees the position of the United States of America in relation to the Treaty. He asked what is being done to get them to sign the Treaty and what would the impact of their not signing be.

Professor Relamira said when the Statue was adopted in Rome in 1998 the General Assembly added a condition to the outstanding issues to try to promote the universality of the Statute. The United States had opposed the Statute in Rome and voted against it because it said it had problems with the jurisdiction clause. It claimed that it was involved in most peacekeeping operations and it would not be appropriate for those who took part in such missions to subjected to prosecution under the Statute.

The Preparatory Commission has tried to accommodate some of the concerns of the United States which has remained part of the discussions. In the last session of the Commission, the US came with a proposal under article 98 of the Statute which in effect creates an obligation on the Court not to insist on surrender or even initiate surrender if a state has other obligations in terms of international agreements. It was agreed to develop a rule under the rules of procedure and evidence which tries to accommodate the United States.

Mr Rwelamira said his suspicion is that the United States is trying to use the surrender issue to widen the scope of its international agreements to the Court. He said there is general resolve on the part of the international community to proceed to ensure that the Treaty comes into force. He mentioned that this has been the case with the Anti-Landmine Treaty which currently has the highest number of signatories.

Mr Rwelamira said underlying the Statute is the principle of complementarity. National courts have primal responsibility to try offences. Theoretically this means that persons can be tried by the Court only if a state refuses to prosecute or proceedings were regarded as a sham or intended to protect those accused. The Statute would apply to nationals of non-party states if the territorial state is a party.

Establishment of the African Court on Human and Peoples' Rights Protocol
Mr Rwelamira said there was a problem with article 5.3 of the Treaty and the Department wanted to consider the issue of the declaration to be made in terms of article 34.6. The concern is that if allowed, there is scope for when one loses a case in the Constitutional Court, to go to the African Court. This would undermine the Constitution and sovereignty of South Africa. The Department has proposed a resolution to say a declaration has to be made saying that observer status NGOs and individuals are entitled to take cases before the Court after permission has been granted by the Department having considered particular circumstances as cases arise.

Ms Jana felt that the resolution of the Committee should say that the Constitutional Court is the highest court in South Africa and that the African Court would not have competence to hear cases it has decided.

The Chairperson said if South Africa enters the Treaty, it cannot say the African Court does not have any competence to decide on cases decided by our own Constitutional Court as this would seem to defeat the purpose of the Treaty.

Professor Rwelamira said by allowing the latitude to give consent he thinks it is possible for the State to say it cannot give consent because the issue has been decided by our own Constitutional Court and the litigant has exhausted all domestic remedies. However, to say individuals and NGOs have no entitlement to take cases to the Court at all would send a negative message.

Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI)
Mr E Allers of the Department said the issue here was the question of immunity to be given to personnel of UNAFRI. He has referred the matter to the Department of Foreign Affairs and is still awaiting a reply from them.

International Covenant on Civil and Political Rights Protocols
The Chairperson said it has been decided that since this Treaty is not very urgent it would stand over to be dealt with next year.

Extradition Treaty between the governments of the Republic of South Africa and the United States of America
The Chairperson asked Mr Rwelamira if there is anything drastically different in this treaty from similar treaties South Africa has entered into with other countries.

Mr Rwelamira did not think so except that in article 5, South Africa has tried to hedge in a clause to say South Africa would not be able to extradite an offender if they would be subject to capital punishment. A two-pronged approach was agreed on to say either the death penalty shall not be sought or it shall not be carried out.

Treaty of Mutual Legal Assistance in Criminal Matters between South Africa and United States
Mr Rwelamira noted that this treaty also contains no major new issues. One area that has been raised is that of transfer of persons in custody. The Department of Correctional Services indicated that they had problems with accepting people in transit as the law does not provide for it. Another problem they encountered was releasing people to testify in another country as this was not provided for. Mr Rwelamira said what they have done in articles 12 and 13 is to change the wording to say "may" so that a discretion is given to the requested state to allow it if its law permits.

Voting
Rome Statute of the International Criminal Court
The Chairperson read the report of the Committee and directed that changes be made to it to remove the words which read "and that the Treaty be binding on the Republic and shall form part of the law of the Republic". The Report would read:
"The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Rome Statute of the International Criminal Court, referred to it, recommends that the House, in terms of section 231(2) of the Constitution, approve the said Statute.

The Report was adopted unanimously.

Extradition Treaty between South Africa and United States
The Chairperson read the report of the Committee approving the Treaty and directed that the words "begs to recommend" be replaced by "recommends". He said Report is to be rephrased as above as the Treaty flows from the Extradition Act which is the law of South Africa. The Report was adopted unanimously.

Treaty of Mutual Legal Assistance in Criminal Matters between South Africa and United States
The Chairperson read the report of the Committee approving the Treaty and directed that the same changes as in Treaty 5A above be made to the wording. The Report was adopted unanimously

Remuneration, Allowances and other Conditions of Employment Determined by the Public Protector for Staff of his Office
The Chairperson read the report of the Committee approving the determination of remuneration, allowance and conditions of employment of staff of the Public Protector contained in the document and it was adopted unanimously.

Issues Standing over for 2001
The Chairperson said the issues standing over for next year are:
the Administration of Estates Bill; the Institution of Legal Proceedings against Organs of State Bill; the Protocol on the Establishment of the African Court on Human and Peoples' Rights; the Protocols to the International Covenant on Civil and Political Rights; and the issue of the suspended Magistrates.

He said he would engage the Director-General on the report of the Department on the budget. He said early next year the Committee, jointly with the Department of Finance, would also be dealing with the issue of the Financial Centre on Intelligence Bill. The Bill aims to make provisions against money laundering work better.

The Chairperson instructed Mr Allers to look at the resolution passed approving the ratification of the Extradition Treaty between South Africa and Australia to see if it was worded correctly. He said if not it would have to be redrafted and brought before the Committee.

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