The executive has the prerogative to withdraw from treaties and does not need Parliament’s approval to do so, the high court in Pretoria heard on Tuesday.

“It’s the executive that goes into it, it’s the executive that goes out of it,” Jeremy Gauntlett, for President Jacob Zuma and the justice and international relations ministers, told the court.

“We say there is no Parliament in the world that we know that takes a decision to go into a treaty. It’s the executive who conducts and concludes negotiations.”

Gauntlett was arguing against the challenge by the Democratic Alliance (DA) to the government’s decision to withdraw its ratification of the Rome Statute, the founding treaty of the International Criminal Court (ICC).

The DA told the court on Monday that only Parliament, and not the executive, could decide to withdraw from a treaty which the country had entered into.

The DA argued that the executive had bypassed its obligations to consult the public.

Gauntlett said the DA’s challenge was premature and that the notice to withdraw from the ICC would be argued in Parliament.

He said Justice Minister Michael Masutha had said he was seeking Parliament’s approval.

International Relations Minister Maite Nkoana-Mashabane had stated that “nothing was cast in stone”, Gauntlett said.

Executive wants act repealed
He acknowledged the DA’s argument that the executive had initiated the decision to withdraw from the ICC after Sudanese President Omar al-Bashir fled the country, in violation of a court order to arrest him.

The ICC has issued warrants for his arrest.
It wants him to stand trial on charges of war crimes, crimes against humanity and genocide.

The executive’s stance was that it had done nothing other than to give notification of its intent to withdraw.

Gauntlett said the executive would seek to repeal the Implementation of the Rome Statute of the International Criminal Court Act, and push through several bills to advance South Africa’s capability to deal with international crimes.

On October 21, Masutha told reporters that South Africa had initiated the process of withdrawing from the ICC by notifying the United Nations of its intention to revoke its ratification of the Rome Statute. It would take effect within a year.

The decision followed several court judgments that the government had violated the law by not arresting Al-Bashir during his visit to South Africa for an African Union summit in June last year. – News24