Judgment: Gauteng Division High Court (22 February 2017)
Case no. 83145/16: Democratic Alliance v Minister of International Relations and Cooperation and Others
The Centre for Human Rights (CHR), Faculty of Law, University of Pretioria, welcomes the judgment of the Full Bench of Gauteng Division, Pretoria, in the matter of Democratic Alliance v Minister of International Relations and Cooperation and Others (case no. 83145/16). The CHR, represented by the Legal Resources Centre, was joined as a party to the proceedings by the applicant for its interest in the matter.
Before the High Court, the CHR argued that the South African Government’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC) is unconstitutional and invalid for four reasons:
First, it violates the separation of powers as the National Assembly and the National Council of Provinces have not, by resolution, approved the entering of the Instrument.
Second, the decision to withdraw was taken without any public participation.
Third, it is substantively irrational because the means – withdrawing from the Rome Statute – are not rationally connected to ends – “to promote peace and security on the African continent”.
Fourth, it is inconsistent with the South African Government’s obligations under sections 1(d) and 7(2) of the Constitution, read in the light of its obligations under the African Charter, the Constitutive Act of the African Union, and decisions, resolutions and reports of the African Commission to respect the sanctity of human life and to reject and condemn impunity.
In the judgment, the High Court held that the Executive’s failure to obtain prior parliamentary approval before delivering the notice of withdrawal to the United Nations was a violation of section 231(2) of the Constitution and a breach the doctrine of separation of powers. As stated by the High Court, the delivery of the notice of withdrawal in October 2016 was procedurally irrational, and a proper construction of section 231 of the Constitution would require prior parliamentary approval and the repeal of the Implementation of the Rome Statute of the ICC Act, 2002 before the notice of withdrawal could be delivered to the United Nations.
The High Court opted to refrain from expressing any view on the substantive grounds raised by the parties.
In the meantime, the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] (ICC Repeal Bill) has been introduced in the National Assembly. Recently, the public has been invited to provide comments on the ICC Repeal Bill (together with the explanatory memorandum to the Bill), as well as on the Instrument of Withdrawal (together with the Government’s declaratory statement and explanatory memorandum issued together with the Instrument of Withdrawal). The closing date for the submission of comments is 8 March 2017.
Professor Frans Viljoen, Director for the CHR, welcoming the High Court judgment regarding South Africa’s proposed withdrawal from the ICC, stated:
“The judgment firmly underscores the critical importance that the South African Government acts at all times with due regard to the demands of the Constitution, both on the domestic and the international planes. We welcome the invitation, by the Portfolio Committee on Justice and Constitutional Services, inviting public comment not only on the ICC Repeal Bill but also on the Instrument of Withdrawal and the Government’s justifications for withdrawing. To give effect to the letter and spirit of today’s High Court’s judgment, a broad consultative process should be followed before Parliament considers the possibility of withdrawal from the ICC. To provide such an opportunity, we request that serious consideration be given to extending the due date for submissions on the issue of withdrawal.”
Centre for Human Rights Practice Note & Heads of Argument
Advisory opinion: African Court on Human and Peoples' Rights (7 January 2016)
Request No 001/2016 - The Centre for Human Rights, Federation of Women Lawyers Kenya, Women’s Legal Centre, Women Advocates Research and Documentation Centre and Zimbabwe Women Lawyers Association
The Centre for Human Rights together with the Women's Legal Centre (South Africa) and Women Advocates Research and Documentation Centre (Nigeria) and joined by the Federation of Women Lawyers, Kenya, the Institute for Strategic Litigation in Africa (South Africa), Legal Advocacy for Women in Africa (Ghana) Alumnae Incorporated, the Malawian and Zimbabwean chapters of Women and Law in Southern Africa, the Women's Legal Aid Centre in Tanzania and Zimbabwe Women Lawyers Association recently submitted a request to the African Court on Human and Peoples' Rights (African Court) for an advisory opinion on the meaning of article 6(d) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) and the state obligations arising therefrom.
rticle 6(d) of the Maputo Protocol provides that every marriage must be "recorded in writing and registered in accordance with national laws, in order to be legally recognised." In their request for an advisory opinion, the applicants acknowledge that marriage registration requirements are an important and appropriate mechanism for safeguarding equal rights in marriage. However, the applicants go on to suggest that the failure to recognise unregistered marriages may be unduly harsh in circumstances where parties are left without rights at dissolution of such a marriage, whether by death or divorce. Non-recognition strikes particularly at women, who are disproportionately dispossessed of property and tenure rights at dissolution and in this way, the effect of non-recognition is discriminatory. As such, the request for an advisory opinion is grounded in article 2 of the Maputo Protocol, which commits states parties to combat discrimination that exists in law or in fact and requires states parties to take institutional and other measures, including corrective action, to prevent all forms of discrimination against women.
The request directs the African Court to confirm that article 6(d) imposes an obligation on states parties to take legislative and other measures aimed at facilitating marriage registration. In many countries in Africa, inadequate infrastructure coupled with low levels of awareness of the obligation to register a marriage and onerous cost and other requirements for registration serve as significant impediments to registration. The applicants content that article 6(d) obliges states parties to take positive measures to address these impediments. In addition, and in order to give effect to the overall object and purpose of the Maputo Protocol and to the commitment in article 2 to eliminate discrimination, the applicants have also called on the African Court to offer an interpretation of article 6(d) that does not perpetuate discrimination against women. A purposive interpretation of article 6(d) should, wherever possible, protect the rights of parties to a marriage regardless of registration status and provide for corrective and other measures to curb this form of indirect discrimination against women.
The request also deals, as a preliminary matter, with the issue whether NGOs have the competence (standing) to submit requests for advisory opinions to the Court. This matter has not yet been determined.
The African Court, based in Arusha, Tanzania, has contentious and advisory jurisdiction. So far, the Court has decided four cases on the merits; and it has delivered one advisory opinion, concerning the competence of one of the African Union bodies. The Court’s competence to provide advisory opinions is captured in article 4 of the Court Protocol:
Article 4 ADVISORY OPINIONS
1. At the request of a Member State of the OAU, the OAU, any of its organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate of dissenting decision.
Request for an Advisory OpinionAnnexures