Ramaphosa and Ace Magashule fight over decision to withdraw from International Criminal Court (ICC)

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The latest split in the ANC is over its 2017 decision to withdraw from the International Criminal Court (ICC).

In notes for his closing remarks at the party national executive committee’s June meeting, President Cyril Ramaphosa called for a “strategic retreat” from the decision following a loss of African support.

But ANC secretary-general Ace Magashule told the Sunday Times this week that the decision to withdraw from the ICC remains. “Conference resolutions can’t be changed midterm,” he said.

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The party’s resolution to quit the ICC followed SA’s failure to execute the court’s arrest warrant for Omar al-Bashir, who was wanted for war crimes, when the then Sudanese president visited SA in 2015 to attend an AU summit.

The Sunday Times understands the party’s NEC decided SA should remain in the ICC because it risked being isolated in Africa if it withdrew, and it wanted to be able to back Palestine against Israel, and Venezuela against the US.

Then-president Jacob Zuma’s justice minister, Mike Masutha, tabled the International Crimes Bill in parliament in 2017 as a precursor to ICC withdrawal. But it has since gathered dust.

● The ANC is considering abandoning its decision to withdraw from the International Criminal Court (ICC).

This decision was taken during the June meeting of the party’s national executive committee (NEC).

It was done because the political climate on the continent has changed, “leaving SA isolated” on the controversial matter, according to the party.

The national executive is the highest decision-making body of the ANC between conferences.

The decision on the ICC had been kept under wraps, but there was no explanation for why this was done.

The Sunday Times has seen notes of President Cyril Ramaphosa’s closing remarks at the NEC meeting.

He said: “We must consider a strategic retreat from our position on withdrawing from the International Criminal Court in view of the fact that the rest of the continent has abandoned this position, leaving South Africa isolated, and also in order to support Palestine in bringing a case against Israel.”

The issue is said to have further widened divisions within the committee.

An NEC member, who is sympathetic to Ramaphosa, said it was a mystery why the decision was not included in the statement issued after the meeting.

There is a proposal to take the NEC decision on the court to the national general council so that it can be adopted as a party position.

ANC spokesperson Pule Mabe said the decision to withdraw from the ICC remained a resolution of the 2017 national conference.

“The 54th ANC national conference reaffirmed the decision that South Africa must withdraw from the ICC and ratify the Malabo protocol on amendments to the protocol on the statute of the African Court of Justice & Human Rights and encourage the speedy operationalisation of the African Court of Human & People’s Rights,” said Mabe.

“The NEC implements national conference resolutions in a manner, and at a time, that is based on a thorough and ongoing assessment of all prevailing political conditions and considerations.”

ANC secretary-general Ace Magashule told the Sunday Times that the decision to withdraw from the ICC remained the decision of the party.

“There is no such [contrary] decision. Our decision [to withdraw from the ICC] remains. Conference resolutions can’t be changed midterm.”

However, despite a denial from Magashule, the Sunday Times understands that the initial proposal came from a senior minister in Ramaphosa's cabinet.

This marks a departure from a hard line that was taken by the Jacob Zuma administration when it was criticised for failing to arrest Sudan’s then-president Omar alBashir, who was in SA in 2015 attending an AU summit.

At the time, the ICC had issued an arrest warrant against Al-Bashir on war crimes charges.

The court urged SA to arrest Al-Bashir as part of the country’s obligations as a signatory to the treaty establishing the court.

Zuma’s then justice minister, Mike Masutha, tabled the International Crimes Bill in 2017 to eventually allow for SA’s withdrawal from the ICC.

A withdrawal from the ICC was also adopted by the ANC’s national general council in 2015. It was adopted by the national conference held at Nasrec in Johannesburg two years later.

The decision to now back away from those decisions sheds some light on why the International Crimes Bill has not been enacted. It was revived last year by the Ramaphosa parliament after it had lapsed when the term of the Zuma parliament had ended. There has since been no movement on the bill.

ANC MP and the chair of the justice portfolio committee, Bulelani Magwanishe, said yesterday that the bill was not priority legislation and would not be on the committee’s agenda soon.

“It will not be on the agenda because part of the challenge is that you would always have to prioritise bills that have a Constitutional Court deadline,” said Magwanishe.

“Even early next year we’ll still be dealing with some of those bills that have a Constitutional Court deadline. So it’s something that certainly this year we won’t process. Even in the early part of next year we won’t be able to process.”

Magwanishe said the justice department was free to withdraw the bill if it wanted to.

A member of the NEC, who asked not to be named because he did not have authority to speak on the matter, said the “strategic retreat” decision was adopted unanimously by the committee.

Lindiwe Zulu, chair of the NEC’s subcommittee on international relations, said such a move would have to be endorsed by the next national general council before it could be officially rescinded.

“A decision of conference cannot be changed by individuals. That decision stands. It has not changed. The matter will have to be tabled before the [general council] and the [council] will take a decision.”

Zulu said the ANC at first wanted to withdraw from the ICC because Africa had planned to create its own legal institutions to deal with human rights abuses.

The processes for an African court had since stalled because countries delayed the ratification of the Malabo protocol, which would have created the African Court of Justice & Human Rights.

– Sunday Times


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