The DA has applied for direct access to the Constitutional Court to challenge the Cabinet decision to pull SA out of the International Criminal Court. The decision was unconstitutional and a breach of the Bill of Rights‚ the DA argued in papers filed with the Constitutional Court yesterday, says a BusinessLIVE report. It wants the court to declare the withdrawal notice and the Cabinet decision to issue it invalid; and to order the government to revoke it.

The DA's grounds for challenging the move are:

* The notice of withdrawal is in breach of section 231(2) of the Constitution‚ as it was delivered without first securing a resolution of Parliament authorising SA’s withdrawal from the Rome statute;

* It was unconstitutional and unlawful to deliver notice of withdrawal prior to Parliament having decided to repeal the Act.

* The notice of withdrawal was procedurally irrational‚ as it was delivered without any process of consultation with Parliament and the public.

* The notice of withdrawal was a breach of the state’s section 7(2) duty to respect‚ protect‚ promote and fulfil the rights contained in the Bill of Rights.

The DA said government acted with ‘haste and in antithesis with the democratic principles of transparency and consultation. This therefore forces us to ask the question: is the SA government committed to justice and human rights?’

Full BusinessLIVE report

DA federal executive chairperson James Selfe lamented SA’s ‘regressive’ decision, having played a leading role in the development of the ICC. ‘It was also the first African country to pass domestic legislation implementing the Rome Statute. SA has turned its back on these ideals,’ he said in the court papers. According to a News24 report, he also pointed out that once SA withdraws from the Rome Statute, the decision cannot be easily undone, and would take a number of years to achieve. ‘This urgency is compounded by the fact that SA’s standing in the international community diminishes by the day while the notice of withdrawal remains in effect.’ The Council for the Advancement of the SA Constitution (Casac) has also filed an application, says a Business Day report. Casac’s case – filed separately– was based on a similar argument that only Parliament could take SA out of an international treaty that it had ratified. Casac said the decision to withdraw would undermine the country’s reputation, as well as its respect for human rights. A report in The Mercury quotes Casac executive secretary Lawson Naidoo as saying: ‘It (the withdrawal) strikes a blow against the international protection of human rights and turns SA into a safe haven for those whom the Constitutional Court once described as the enemies of all humankind,’ Naidoo said.

Full News24 report

Full Business Day report (subscription needed)

Full report in The Mercury (subscription needed)

Justice Minister Michael Masutha has taken a swipe at the DA, saying he is concerned when political parties opt to take the legal route instead of using debates in Parliament to raise their concerns. According to an SABC News report, the Minister added that he doesn't understand the urgency of the application as it will take a year to ratify the necessary laws to allow SA to withdraw. ‘I'm a little concerned that it seems as if we have opted to use the courts to resolve every other political issue, or if we feel that the political platform that the Constitution provides us does not help us get our way through the democratic process, we are very quick to run to courts to seek recourse there.’

Full SABC News report

Masutha also described diplomatic immunity as a ‘necessary evil’ that is essential to SA’s peacekeeping efforts in Africa, notes a BusinessLIVE report. Masutha reportedly told Radio 702 that if SA ‘had to arrest‚ prosecute or otherwise refer sitting heads of state and other political leaders … despite the possibility of them enjoying diplomatic immunity’, it would impede its ‘ability to pursue ideals of peace and stability’. He said that diplomatic immunity ‘immunes (sic) you from criminal or civil liability when you arrive at a foreign country because it is a necessary evil … to ensure that countries are able to engage each other in good faith…’. Masutha said the ICC‚ like other international forums‚ was ‘flawed’‚ and under the Rome Statute, ‘our international diplomatic system is being held hostage and‚ as a result‚ we are not able as a nation to advance our national and international policy objectives, which ultimately seek to benefit the people of SA and the people of the continent’.

Full BusinessLIVE report

The UN says SA remains the only country to formally submit an instrument of withdrawal from the Rome Statute. The UN Secretary-General has expressed his deep regret at the decision, according to an SABC News report. ‘The withdrawal of SA from the ICC is something the SG deeply regrets. We have not received any updates from any other countries, there have been press reports, no letter from Burundi – as of this morning, we were not advised that one had been received. This is something that concerns not just the SG, but I think the international community as a whole; but we would hope that all those countries that belong to the states parties, especially those that were part of the founding movement of the ICC, would also have discussions with member states, to ensure that it is important that this key part of the international justice architecture remains strong,’ a UN spokesperson is quoted as saying.

Full SABC News report

Other African countries plan to follow suit, with Kenya being the latest to make preparations for a withdrawal. A report in The Mercury notes it emerged yesterday that the Kenyan cabinet was finalising a decision to withdraw from the ICC after it criticised it for prosecuting President Uhuru Kenyatta, his deputy, William Ruto, and four other leaders for the 2007 post-election violence. The case crumbled before the ICC last year, leading to the acquittal of those leaders. The ICC asked SA and Burundi on Saturday to reconsider their decisions.

Full report in The Mercury (subscription needed)