President al-Bashir matter and the interaction in the trias politica

The Parliamentary Portfolio Committee on International Relations and Co-operation (PC) held a meeting on 8 March 2017. The aim of the meeting was for the Minister of Justice and Constitutional Development to provide feedback on the High Court ruling of DA v Minister of International Relations and Co-operation.  

The High Court ruling illustrates the workings involved in the trias politica and how international law can impede national sovereignty. The trias politica is the philosophy that there has to be a strict separation powers between the Legislature, Executive and Judiciary. The aim is that each institution is assigned tasks in a way that keeps a check on each other. As a result, no one institution can become so powerful that it can destroy this system. In South Africa, our Constitution provides each institution with its powers.

We are aware of the background to the High Court Ruling: South Africa is a party to the International Criminal Court (ICC). The ICC was established by the Rome Statute of the International Criminal Court to exercise jurisdiction over serious crimes of concern to the international community. The litigation history over the ICC has its genesis in the refusal by the South African Government to arrest and surrender to the ICC, Omar Hassan Ahmad al- Bashir (President al-Bashir) the President of Sudan, when he visited South Africa in June 2015 for an African Union (AU) Summit. President al-Bashir stands accused of international crimes of alleged genocide, and two warrants have been issued by the pre-trials chamber of the ICC for his arrest.

Subsequently, South Africa issued a notice of withdrawal to the ICC. It is this issue that was considered and ruled on in the Gauteng High Court. The High Court had to consider amongst other issues, whether:

1.       It was constitutional for South Africa to withdraw from the ICC without the required approval from Parliament;


2.       The power of the national executive to negotiate and sign an international treaty includes the power to withdraw from such treaty without prior  

           parliamentary approval; and


3.       Parliamentary approval may be sought after notice of withdrawal had been delivered to the United Nations?


The Minister of International Relations stated in the high court papers that the reason for the withdrawal is because, the ICC compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the ICC. This South Africa has to do so, even under circumstances where it is actively involved in promoting peace, stability and dialogue in those countries.

During the committee meeting, Members of Parliament (MPs) raised questions on Parliament’s role or participation in ratifying international agreements. Whether Parliament only rubber-stamps these international agreements without questioning it or having the public involved. An MP questioned whether Parliament replied to the letter or notice received from the Minister of International Relations? If not, it was an indication that Parliament cannot hold the Executive accountable? Other issues raised was that Parliament is not given sufficient details on international agreements and that South Africa has been summoned to appear before The Hague.

In terms of the Constitution, the National Executive has the power to conclude international agreements. The Executive therefore signs these international agreements. However, the international agreement only binds South Africa once it is ratified by Parliament. In this case, the international agreement had to be domesticated. In that, it required an act of Parliament for the international agreement to be implemented in order to bind South Africa. This being the Implementation of Roman Statute Act.

Parliament’s constitutional mandate is to make legislation, oversee its implementation by the Executive and conduct oversight over the functions of the Executive. In conducting its functions, the Constitution provides that Parliament must put in place the necessary processes to conduct its business and that it must involve the public to participate in its processes. The rules of Parliament prescribe various procedures to involve the public in legislation and its functions however, there are no rules for public participation when it comes to ratifying international agreements. My view is that this court ruling has again opened the debate within Parliament about its role in treaty-making and adding the voice of the people to it.

In terms of the high court case, it was concluded that the power of the Executive in respect of international agreements is fettered as the Constitution enjoins the National Executive to engage Parliament. The High Court held that withdrawing from an international agreement should have followed the same process as ratification of an agreement, that is, the withdrawal notice should have been approved by Parliament. As it was not, the act by the National Executive of withdrawing from the ICC without Parliament approval was invalid and therefore unconstitutional. The High Court also ruled that obtaining parliamentary approval retroactively does not validate or make the action constitutional. Justices Mojapelo, Makgoka and Mothle succinctly put it:


“If it is parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national executive can unilaterally terminate such an agreement.”


We must not forget that our constitutional democracy is based on proportional representation. Although, the majority people have spoken in the elections as to who should rule us, the separation powers come into effect when decisions affecting South Africa, like policies and legislation are made. Politicians within the National Executive and Legislature do talk to each other in political caucuses, study groups, etc within and outside the precincts of Parliament.

The Minister of Justice was not available. The Acting Chief State Law Adviser of the Department of Justice briefed the committee however, political questions asked could not be answered. The Chairperson to the PC concluded that a joint meeting will be scheduled with the PC: Justice where the Minister of Justice and the Minister of International Relations will be invited in order for MPs to ask political questions in an open forum.

The Minister of Justice subsequently issued a media release on the 15 March 2017 stating that South Africa will no longer be withdrawing from the ICC. The bill repealing the Implementation of Roman Statute Act was also withdrawn from Parliament.  However, this does not prevent South Africa from issuing a notice of withdrawal to the ICC at a later stage, tabling a bill repealing the Implementation Act and following the procedure as set out by the High Court.