International Criminal Court ruling: briefing by Department of Justice

International Relations

08 March 2017

Chairperson: Mr M Masango (ANC)

International Criminal Court ruling; Foreign Service Bill: input by Department of Defence

High Court Ruling on International Criminal Court matter: DoJ&CD briefing

Meeting Summary

Both Ministers of Justice and of International Relations were absent from the meeting which irked the Committee as they needed to account for the International Criminal Court withdrawal without seeking Parliament’s approval and repeal of the Rome Statute Act. They said that a department official could not answer political questions.

The Department of Justice made a presentation on the High Court ruling on the International Criminal Court matter. It was noted that Cabinet had accepted the Court’s ruling that procedurally the Notice of Withdrawal was invalid and would abide by the decision. The Notice of Withdrawal was withdrawn from the United Nations on 8 March 2017. Cabinet had established a technical committee to develop a Compliance Road Map and Parliament was considering an appropriate course of action.

The judgement was welcomed by opposition parties as it meant that Parliament should be at the centre of engagement and not just a rubber stamp. It gave the Committee the powers to engage properly with future treaties. As it was the non-arrest of a sitting head of state against whom the ICC had issued a warrant of arrest, there was concern that its peacekeeping role on the continent of Africa superseded national and international law obligations. The Committee was reminded that South Africa had to appear before the International Criminal Court on 1 April 2017 to answer to the case of non-arrest. Members were concerned about the repeated poor legal advice that was given to the Executive and poor interpretation of the Constitution which had led to expensive court cases which were paid for by the taxpayer.

Members noted that the decision to respect the court was a good one. ANC members felt sure that the task team would come up with ways to address the issue so that the ICC withdrawal, although delayed, would be done once the processes had been followed. The Chairperson agreed that the Committee would invite both Ministers and would want them both present at the same meeting.

The Department of Defence provided input on the Foreign Service Bill. The main concerns were the definition of an employee or member of a foreign mission that did not include Defence Attachés as they were not employed under the Public Service Finance Management Act (PFMA). They also performed somewhat different functions from other employees at a mission. The problem arising from the Defence Attachés having to report to the Mission Head had to be aligned to their reporting role directly to the Department of Defence and Military Veterans. The same applied to the recall of Defence Attachés who technically could only be recalled by DoD. That Defence Attachés were trained by the military and not at the Department of International Relations and Cooperation (DIRCO) International School was a point of discussion. Accountability for DoD assets kept at foreign missions had not been adequately addressed and various regulations needed attention. Committee members discussed whether there should be a separate section for Defence Attachés or whether completely separate legislation was required.

Meeting report

The Chairperson welcomed the officials from the Departments of Justice and Correctional Services, International Relations and Cooperation (DIRCO) and the Department of Defence and Military Veterans (DoD) as well as the media. The Chairperson welcomed Mr Brian Molefe to his first meeting as a member of the Internal Affairs and Cooperation Committee. He would also serve on the Portfolio Committee on Economic Development. They were pleased to welcome him as they would benefit from his huge intellectual capital and his experience. Written apologies were received from the Ministers of Justice and Defence.

High Court ruling on the International Criminal Court matter: briefing by Department of Justice
Acting Chief State Law Advisor, Ms Ayesha Johaar, provided a briefing on the High Court ruling on the International Criminal Court matter in the case of the Democratic Alliance v Minister of International Relations and Cooperation and Others (Case No 83145/ 2016). She was accompanied by the Deputy Director General: Legislative Development, Ms Kalayvani Pillay, and State Attorney, Dr Kobus Meier, who assisted in the State in the case, as well as Theo Hercules, the Deputy Chief State Law Advisor.

On 19 October 2016, the national executive took the decision to withdraw from the Rome Statute. A notice of withdrawal was subsequently signed by the Minister of International Relations and Cooperation, to give effect to that decision and it was deposited with the Secretary-General of the United Nations. This triggered the process for South Africa’s withdrawal. Identical letters were sent by the Minister of Justice and Correctional Services to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces on 20 and 21 October 2016, advising them of Cabinet’s decision to withdraw, and the reasons for the withdrawal.

On 11 November 2016, the High Court was asked to declare the notice of withdrawal unconstitutional and invalid; as well as the Cabinet decision to withdraw from the Rome Statute and to deliver the notice to the Secretary-General of the United Nations, initiating the withdrawal.

The Court stated that section 231 of the Constitution should be the point of departure. There was no question that the Executive has the power to conduct international relations and to conclude treaties but that power was fettered by the requirement for the national executive to engage Parliament. Its implementation was procedurally irrational because Parliament had not given its approval. According to the Constitution, Parliament needed to repeal the Rome Statute Act first, before a notice of withdrawal could be sent to the United Nations. Cabinet would have to start the process again through Parliament if it wanted to withdraw from the ICC officially.

In the judgement, the North Gauteng High Court found that there was nothing patently unconstitutional as it was within the Executive’s powers to take the decision. The process was invalid as Parliament had not been informed prior to the sending of the Notice of Withdrawal to the United Nations.

Court Order
The Court ordered the Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services and the President of the Republic of South Africa to revoke the notice of withdrawal and to pay the applicant’s costs, including costs of two counsel.

Way forward
Cabinet has noted the ruling of the High Court and abides by the ruling and has established a task team to determine a compliance road map.

Ms G Breytenbach (DA) thanked the presenter. She requested a copy of the document that she had been reading prior to reading from the PowerPoint presentation. It could be assumed that everyone wanted a copy. The presenter referred to technical task team that was developing a compliance road map. Did she know how far the team was and what the map contained? Ms Breytenbach requested a copy of the document. She informed the Committee that on today, the Notice of Withdrawal from the ICC was withdrawn so that portion of the Court Order had been complied with.

Mr S Mokgalapa (DA) said that the judgement was to be welcomed as it said that Parliament should be at the centre of legislation and accountability in the country and should be taken seriously. The Committee had long complained that Parliament was not properly consulted about international treaties and then was expected to assent to international treaties. This judgement said Parliament was not just a rubber stamp. It gave the Committee the powers to engage properly with future treaties. Parliament should do its job and the Executive could not do things expediently. It would be interesting to see the roadmap. He noted that such decisions were leading to much litigation and costing the government a lot of money. It was one of those classic cases. He referred the Acting Chief State Law Advisor to the argument that by leaving the ICC, the government would be free to pursue its peacemaker role on the continent without the obligation to arrest indicted heads of state. In her view, did diplomatic immunity supersede domestic law and international law obligations? The argument advanced was that government wanted to engage in peacekeeping and did not want to be tied down by the Rome Statute in terms of warrants of arrest. Is it going to work? Which one comes first? It might be a chicken and egg situation in terms of diplomatic immunity versus international law obligations. The Democratic Alliance welcomed the judgement and looked forward to engaging in the process moving forward.

Mr D Bergman (DA) agreed with his colleagues that the international treaties that they signed were often a case of ‘action and reaction’. He was sure that the Executive was going to go ahead with the ICC withdrawal after correcting their steps. He felt that at least one of the Ministers should have been present to respond to questions as it was ultimately the Ministry and the Executive that made the decision. He was worried about the legal advice given to ministers because there seemed to be a lot of court cases that were lost in terms of decisions taken at executive level and it reflect on the reputation of their legal advisors. The country has the Constitution but every judgement seems to attack the incorrect understanding, knowledge and interpretation of the Constitution and it is embarrassing for Parliament. If it was the legal department’s advice to the Ministers, they needed to interrogate the bureaucracy. But if it was the Executive itself then the Committee needed to look into how they should address the decisions taken by the Executive that ended up costing the citizens of South Africa. South Africa had been summoned to The Hague on 7 April to explain why it had allowed Sudanese President Omar al-Bashir to exit South Africa. Were they aware of that and was it on the roadmap?

The Chairperson indicated that they would have loved to have the Minister but he was off sick. The Acting Justice Minister, Faith Muthambi, was to attend but she had apologised saying that she was assigning the officials to the Committee meeting.

Ms H Hlophe (EFF) wanted clarity about the Minister’s absence because the agenda was misleading as they had been expecting the Minister.

Ms Hlophe understood that the case was the Democratic Alliance versus the Minister of International Relations and Cooperation and therefore it would be procedurally correct for the Department of International Relations and Cooperation (DIRCO) to present first as that department was accountable, although she did understand the role played by the Department of Justice. However, procedurally she felt it would have been better if the Minister of International Relations and Cooperation had come to the Committee to account.

Ms Hlophe referred to page 5 of the presentation: “Identical letters were sent by the Minister of Justice and Correctional Services (“Minister”) to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces on 20 and 21 October 2016, advising them of Cabinet’s decision to withdraw, and the reasons for the withdrawal.” Did the Speaker and Chairperson reply? The Court was querying the process so her question was whether the letter was presented to Parliament? They were in that mess because Parliament did not hold the Executive accountable. On page 20, the presentation referred to a Committee. The Committee was not being given information about what was happening. One of the reasons given was that South Africa needed to withdraw from the ICC in order to play a role on the Continent. What was the alternative? If there was no alternate body, then what was the way forward? A treaty was signed in1989 but there had been no follow up. If South Africa were to withdraw from the ICC, then what was next?

Mr M Lekota (Cope) said that the Committee should be clear as to whose role it was to do what. In so far as the political head of the Department was not there, they were honestly making a serious mistake to think that they could tie down the members of the bureaucracy to the political question. When they wanted a political showdown, the bureaucrat ought not to take responsibility for political decisions. They were employed to give advice not to decide for the politicians. Why was it thought that a person paid to give legal advice should answer to political questions? Bureaucrats should not be there to defend questions that the Committee had about the ICC decision; those questions should be answered by the Minister. He found it very embarrassing that they found themselves in a position where they confronted sardines when the sharks were away. They needed the sharks there. He wanted to appeal to the Chairperson. They had been given that report and it had been competently presented but they were missing the point if they asked the employees to answer. He did not want to hold a bureaucrat to account. This report should have been given by the Minister. The person who presented was competent but not to be interrogated. The Ministers should be there to hear as they held them to account. He did not want to hold bureaucrats to account. He wanted to hold politicians to account. Why did they not arrest Omar al-Bashir? He was the Minister of Defence when people were shot in Darfur and when they returned, he had asked why Omar al-Bashir was not arrested. South Africa could not again be the polecat of the world by being seen as protecting those who were killing innocent and defenceless people in Africa.

Mr M Mncwango (IFP) agreed with Mr Lekota that they could not ask political questions to legal technocrats. He personally had a lot of questions that he had wanted to put to the Minister and was expecting answers from the Minister. He could not expect any answers from the legal experts. He welcomed the decision of the Court as it had done a great deal to restore the constitutional aspect of Parliament as far as international treaties were concerned. Very often Parliament was just side-lined on crucial matters like those. He did not understand how it had actually eluded even their legal technocrats about the simple protocol of going out in the manner in which they actually did, because Parliament had been involved in the signing of the treaty. How did they think that when they wanted out, they could simply ignore Parliament? One had to go out the door that one had gone in. They wanted to leave through the window. That was just not on. South Africa could not have its cake and eat it. If they wanted to be champions for human rights in Africa and elsewhere, then they should actually be seen to do so. They could not be a champion of human rights on the one hand and then on the other, sup and dine with people who are supreme violators of human rights. They could not do that. He wished he could have the Minister there to answer to all these questions.

The Chairperson explained that the Committee had not asked the Minister of International Relations and Cooperation to come and make a presentation on that matter. They had invited the Minister of Justice, who unfortunately was sick and was represented by Acting Justice Minister, Faith Muthambi. All the members were demanding that to get clarity on political questions and for purposes of accountability, the Minister should come there. He could arrange a meeting where both Ministers could come but for the moment, as they were dealing with legislation for a legislative process, he had only invited the other Minister. He noted that all international treaties, and they were sitting with about 14 different international treaties affecting different Committees and Departments, all of those treaties, whether they were to be ratified or are being withdrawn, should touch base with the Committee. He wanted to say to members that the Portfolio Committee on Justice should work very closely with them to the extent that it affected the work of that Committee. Could it be agreed that both Ministers should be invited to make a presentation? The Minister of International Relations because she was assigned by the Executive to deposit the Notice of Withdrawal to the ICC as a representative of South Africa and the Minister of Justice because he had to address the Assembly of Third Parties, as it were.

Ms D Raphuti (ANC) thanked the lady for the presentation and wished all women, “Happy Women’s Day”. She noted that what was important to the Committee were the uBuntu attributes but not on that day. Kindness, politeness and caring were not there as some visitors were unkind and uncaring and had displayed a bad attitude. It was impolite and uncalled for that opposition MPs referred to people as "sardines and sharks". It was uncalled for and those people should apologise.

The Chairperson said he had wanted to comment that all fish are important.

Mr B Radebe (ANC) said that the Committee was an extension of Parliament and the Rules of Parliament applied. People could not be referred to as animals, in particular referring to the Ministers as sharks. The parliamentary constitution should be respected. It should be ruled upon. On behalf of the ANC he really appreciated the presentation and the level of advice given to Cabinet not to challenge the decision of the High Court. The decision did not cast aspersions on the decision of the Executive to withdraw from the ICC. The Executive had the power to withdraw but just the process had been wrong so the advice had been good and respectable. Even if the advisors were referred to as small fishes, they were good. The decision to respect the court was good. Cabinet had already begun complying with the order and that was why South Africa had a good reputation. The Executive would come with ways to address the matter. It would be delayed but it would be done as soon as the processes had been followed. They just had to consult with stakeholders and present it to Parliament and it would be done. He appreciated the advice of the legal advisors. The Court had made a good decision and Members should support the Executive.

Ms Hlophe said that they could not support the Executive as the Executive should be accountable. They had done wrong. They did not even understand their constitutional powers. Referring to the presentation, it said that government should pay costs for the court ruling but it was the taxpayers who would pay. They were not paying out from their own pocket. Otherwise, the Committee should take the decision that they should pay from their own pockets. It should come to an end.

Mr Lekota did not want to open an English class but even in the mother tongue there are figures of speech and he had used a figure of speech. It was a figure of speech to say that people who had no powers were sardines. They were employees, they were experts and were trained to give advice. He doubted whether the officials had thought they were sardines. He explained how figures of speech should be interpreted. If his colleagues did not understand figures of speech, they could not call him out of order. He used a Sotho figure of speech as an example.

The Chairperson shared an anecdote making the point that language can have different meanings to different cultural groups. He also wanted to make the point that public representatives were not more important than officials. He asked Mr Lekota to withdraw his comments but Mr Lekota refused. A general commotion followed.

Mr Radebe complained saying that action should be taken. Mr Mokgalapa interjected saying that time was being wasted. Ms Breytenbach pointed out that the judgement did not exonerate the Executive as they were found to be wrong on several points. Mr Bergman asked that the Committee attend to business as this behaviour was embarrassing and wasting time attacking Mr Lekota for saying something perfectly acceptable was frivolous. The Chairperson said that he would take advice from the Rules Committee.

The Chairperson said that the presentation had been noted and the decision of the court had been noted. They would invite both ministers and would want them both at the same meeting. He would confer with the Chairperson of the Justice Committee to see how Parliament was going to deal with the matter.