South Africa may lack time to 'domesticate' ICC law to clear way for Putin's BRICS summit visit

South Africa may lack time to 'domesticate' ICC law to clear way for Putin's BRICS summit visit
Cyril Ramaphosa and Vladimir Putin on the margins of the first Russia-Africa Summit held in Sochi, Russia / bne IntelliNews
By bne IntelliNews May 5, 2023
Ronald Lamola, South Africa’s Minister of Justice and Correctional Services, has said the government is exploring ways to address the touchy issue of a possible visit by Russia’s President Vladimir Putin in August.    

The International Criminal Court (ICC) in mid-March issued a warrant of arrest against Putin for a war crime: the unlawful deportation of Ukrainian children. He is due in South Africa for a summit of the BRICS bloc of nations, which includes Brazil, China and India. 

South Africa in November 2020 ratified the Rome Statute that established the ICC, and so is bound to arrest Putin and hand him over to the court for trial at the Hague should the Russian leader attend the summit.

While Africa’s most modern economy has that obligation, it is also a close ally of Russia and so has been exploring possible ways out of the quandary.

One of them, Lamola told a parliamentary committee on Tuesday (May 2), is to domesticate the ICC laws so that visiting foreign heads of state could enjoy customary diplomatic immunity, according to reports. 

“We are looking at all options in this regard including to look into the Bill that may amend the implementation of the Act to bring it in line with International Customary Law such as that practised in Great Britain and Holland, where the Executive has the power to exit or suspend the implementation of the statute where it is not in the national interest to continue with its implementation,” Lamola said, according to Cape Times, a local daily.

If this option succeeds between now and August, South Africa could legally host Putin in person and not be obliged to arrest him.

Lamola made the remarks a few weeks after President Cyril Ramaphosa threatened to withdraw from the ICC only to withdraw the statement hours later. It would not have been the first time that South Africa attempted to leave the ICC.

In 2016, then led by Jacob Zuma, the government filed a notice to withdraw following controversy around his administration’s refusal to arrest Sudan's President Omar Hassan Al Bashir, who had an ICC arrest warrant over alleged war crimes in his country. Bashir had visited South Africa in June 2015 for a continental summit.

An opposition party, Democratic Alliance (DA) challenged the decision in court which, in February 2017, invalidated the government’s notice of withdrawal. The court said it reached that decision because the government had not formally communicated its intention to leave the global court, had not held public consultations locally on the matter and had not secured the concurrence of parliament.

Writing then, Hannah Woolaver, an associate professor of public international law at the University of Cape Town said the African National Congress (ANC) government could have used its strength in parliament at the time to secure the legislative backing to make the notice of withdrawal from the ICC valid.

Now six years on, Ramaphosa’s ANC still enjoys a substantial parliamentary majority that is needed to pass the amendment that, as Lamola said, would give the executive the prerogative to grant immunity to certain individuals who are on ICC arrest warrants such as Putin. 

The party holds 230 seats in the 400-seat chamber while the DA is second at 83 and Economic Freedom Fighters is third with 44. This suggests that, if the ANC government brings the amendment Bill to parliament and whips all its legislators to back it, it could get the majority it needs for the proposed changes to sail through.   

Russian news agency (TASS) quoted Lamola on May 3 as saying relevant work is currently underway within the government. He promised to make a public announcement immediately after the final decision is made. According to Lamola, the issue will have to be resolved before the country hosts the BRICS summit in August.

However, time does not look on the ANC’s side, about 109 days before the conference begins in Cape Town. Bills have to pass through a number of stages including drafting, committees, public consultations, the country’s bi-cameral legislature and presidential signature. This, again, depends on the kind of Bill that is being debated whether it is a "Section 75 Bill", which does not affect provinces, or a "Section 76 Bill", which does.

“It is highly unlikely the legislative amendment would be completed by then,” local media outlet News24 wrote on May 2.

The Parliamentary Monitoring Group, a local independent information service, says it takes an average of 153 days for parliament to pass a Bill.

“The passage of a bill through parliament is prescribed,” it says on its website.

“Prior to its arrival, it follows a lengthy process that includes the formulation, drafting, approval and certification of a draft Bill. The legislative journey in Parliament can either be smooth or encounter roadblocks – both procedural and substantive. Our findings over the past decade show that on average it takes Parliament 153 days to pass a bill: introduction to adoption: 153 days, adoption to assent by president: 96 days, assent to commencement: 161 days, introduction to commencement: 410 days.”

If the government goes ahead and initiates the amendment, the process is likely, as was the case between 2016 and 2017, to be acrimonious.  As it did then, the DA will likely strongly oppose the Bill in the parliament despite its small representation.  It could use its substantial lobbying capacity as well. 

And as that happens, South Africa’s relations with the West could be endangered.  Western nations have been urging the government to arrest Putin if he attends the August summit in person.

A senior South African government official told a local paper, The Sunday Times on May 1 that the country would “have no option not to arrest Putin.  If he comes here, we will be forced to detain him.” The Vanguard of Nigeria reported on May 2 that South Africa had, instead, urged the Russian leader to attend the summit via Zoom.