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Court challenge to South African ICC withdrawal could go either way

A case challenging the South African government's decision to withdraw from the International Criminal Court (ICC) went before a court on Monday. The challenge was lodged by the country's main opposition party the Democratic Alliance (DA).

South African President, Jacob Zuma, during a press conference in Harare, Zimbabwe, on 3 November 2016.
South African President, Jacob Zuma, during a press conference in Harare, Zimbabwe, on 3 November 2016. Reuters/Philimon Bulawayo
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The decision was taken by President Jacob Zuma last October, following similar moves from Burundi and The Gambia.

The DA wants the country High Court to nullify the decision, arguing that the move was unconstitutional. The opposition party argues that Zuma has bypassed and "undermined" parliament.

Kaajal Ramjathan-Keogh, the director of the Southern Africa Litigation Centre, which is a party to the challenge, was at Monday's hearing.

"The challenge was lodged on two grounds" Ramjathan-Keogh told RFI. "First on a procedural basis: South Africa didn't launch the correct procedure. Secondly on substantive grounds, the withdrawal was done without any public consultation or parliament approval, and seemingly the decision was made irrationally."

Meanwile, the government is arguing that the issue of withdrawal will be put to parliament next year and that it had to act urgently.

The verdict, which is not expected until early next year, could go either way. 

"One never knows what might happen," says Dire Tladi, a professor of international law at the University of Pretoria. "The arguments that are made on both sides are related to what the constitution implicitly provides."

A young democracy

Understanding and interpreting the South African constitution will be a key part of the hearing.

"The thing to remember is that South Africa is a young democracy," says Grant Masterson of the Electoral Institute for Sustainable Democracy in Africa. "There are many aspects of our constitution that haven't been tested in a court. So this is going to be a very interesting test case. We're looking at the test of the rights of various institutions of government."

Zuma challenged on alleged influence-peddling

This is not the only case that the DA has launched against Zuma's party, the African National Congress.

On Monday it asked the Constitutional Court to compel the president to establish a judicial inquiry into alleged influence-peddling in his government.

"There's certainly politics involved," says Grant Masterson. "The DA sees an opportunity to embarrass Jacob Zuma and the ruling ANC party with what is a very counterintuitive move from the ANC. As the DA keep reminding, it's the same party of Nelson Mandela that placed human rights as the guiding principle of South Africa foreign affairs policy in the late 1990s."

If the challenge fails, South Africa, which joined the ICC in 1998, would withdraw from it in October 2017.

"I don't think [it could be stopped] if it fails," says Dire Tadli. "Since the government is the initial decision maker and if the court recognises that the government could make that decision, then the only way to reverse it would be for the government to make a decision."

The hearing will continue, and end, on Tuesday. A decision from the High Court is then expected early next year.

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