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Sharon Hofisi Legal Letters
Parliamentary sovereignty or supremacy is a constitutional principle found in most country Constitutions. It makes Parliament the supreme legal authority in such countries.

Fundamentally, this principle explains the relationship between Parliament and the courts in law-making functions.

One of the important aspects in this relationship is that only Parliament can change or reverse a law passed by Parliament.

In this vein, the High Court of South Africa, sitting as the full bench, decided that South Africa’s withdrawal from the International Criminal Court (ICC) was procedurally improper.

Constitutionally speaking, the Court in Democratic Alliance v Minister of International Relations and Cooperation and 11 others, 83145/2016, affirmed the role of Parliament in giving credence to executive decisions.

SA’s withdrawal from the ICC as a supranational body fits into what is described in political science as “legal” and “political sovereignty”. The Court is dealing with legal sovereignty as protected by the Constitution.

This type of sovereignty cannot be simply lost through political decisions.

The Court was right then in declaring as unconstitutional and invalid cabinet’s decision to deliver the notice of withdrawal to the United Nations Secretary-General without prior parliamentary approval.

The reasons for the withdrawal also warranted the involvement of the SA Parliament.

The reasons included the need to avoid overlapping obligations to the AU as a regional organisation and the ICC as a supranational body.

The AU obliged SA to grant immunity to President Al-Bashir. The ICC obligations demand that SA arrest and surrender the same President to answer charges of genocide and crimes against humanity.

The South African Parliament, which consists of two Houses, (the National Assembly and National Council of Provinces) with distinct functions and powers, was therefore supposed to input into this important development before wholesome executive decisions were taken.

The National Assembly is enjoined, among other functions, to ensure that members of the executive perform their work properly. It also provides a forum where the representatives of the people can publicly debate issues.

The National Council of Provinces, as the other constituent element, provides a forum for debate on issues affecting provinces.

In that regard, the National Assembly as part of the three arms of government, has the opportunity to defend the political sovereignty of SA.

It is a constitutional need to maintain checks and balances on how the executive implements key national decisions that have a huge impact on national governance.

The two houses were advised of Cabinet’s decision to withdraw from the Rome Statute by the Minister of Justice. The Minister stated his intention to table in Parliament a bill repealing the implementation of the Rome Statute.

It became apparent at that juncture that prior parliamentary approval and public participation in Parliament should have been prioritised before a notice of withdrawal was issued.

The practice in most legal systems is that important policy matters imbued with governance issues, which are brought before superior courts such as the High Court, Supreme Court or Constitutional Court, may be presided over by more than one judge. The panel structure of the South African High Court is no different.

Further, matters that hinge on policy or governance issues are usually presided over by the leader of the concerned court, that is, the Judge President or his/her deputy for the High Court or the Chief Justice or his deputy for matters that appear before the Supreme Court.

The panel structure of the court -three Judges at first instance — is very important in legal theory. The decided case becomes part of judicial precedent. In practical effect, more legitimacy is given to a decision that is collectively made compared to decisions of a single judge.

It is important to note however that any given bench of a superior court immensely contributes to the jurisprudence on the interpretation of the law of a country.

It also gives certainty to important issues such as the ICC, which decisions in essence epitomise the dichotomy between state policy and the law.

The SA High Court made a finding that the notice of withdrawal from the Rome Statute of the International Criminal Court by the Minister of International Relations and Cooperation without Parliamentary approval was unconstitutional and invalid.

This finding adds impetus to the need to uphold the separation of functions or powers doctrine as a fundamental tenet of governance in any functional democracy.

The withdrawal saw the general public expressing its sentiments which Parliament in its representative capacity had to deliberate on.

The case also gives credence to previous decisions by SA courts that public sentiment alone is not sufficient to influence the decision of the court, and that decisions are based on facts of law.

SA gave the notice in terms of Article 127 (1) of the Rome Statute which requires State Parties to give a year’s notice for government to negotiate and sign an international treaty, including the power to withdraw from such treaty without parliamentary approval.

The SA High Court made a finding that resonates with the finding of the United Kingdom High Court in R (Miller) v The Secretary of State for Exiting the European Union, 2016.

This is because the courts in both cases decided with the effect of the withdrawal from international institutions. While the UK wants to withdraw from a regional bloc, SA wants to withdraw from a supranational body due to issues that have to do with threats to State sovereignty.

The SA court interpreted the heart of the dispute before it as “the withdrawal of South Africa from the Rome Statute of the International Criminal Court (the ICC)”.

The withdrawal followed the filing of an urgent application by the South African Litigation Centre at the High Court. It wanted the SA Government to arrest and surrender Sudanese President, Omar Al-Bashir to the ICC, when he visited SA in June 2015 for an African Union (AU) Summit.

A full Bench found the SA Government’s failure to arrest him to be inconsistent with the Constitution and unlawful.

That finding, which was also upheld by the SA Supreme Court of Appeal, was based on the fact that SA is a member State to the Rome Statute. As such, it was enjoined to cooperate with the ICC and arrest Al-Bashir.

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