Implementation of Rome Statute of International Criminal Court Bill [B42b-2001] & Reinstatement of Enrolment of Certain Deceased

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
25 June 2002
IMPLEMENTATION OF ROME STATUTE OF INTERNATIONAL CRIMINAL COURT BILL [B42B-2001] & REINSTATEMENT OF ENROLMENT OF CERTAIN DECEASED LEGAL PRACTITIONERS BILL [B 6B-2002]: FINALISATION

Chairperson: Mr Mokoena (Northern Province, ANC)

Documents handed out:
Reinstatement of Enrolment of Certain Deceased Legal Practitioners Bill [B 6B-2002]
Implementation of Rome Statute of International Criminal Court Bill [B42B-2001]
Proposed Amendments to ICC Bill (Appendix 1)
Changes to Clause 10 of ICC Bill (Appendix 2)

SUMMARY
The Committee passed the finalised Reinstatement Bill without making further changes. After examining three proposed amendments to the Implementation of the Rome Statute of the International Criminal Court Bill, the Committee passed that bill as well.

MINUTES
Having finalised the Reinstatement Bill at the previous meeting, the Committee members quickly passed the bill after noting that the previous week's changes had been made.

Next, the Chair turned the meeting over to Mr Bassett from the Department to take the Committee through the three proposed amendments to the ICC Bill.

The Department added the word "relevant" after "comparable" to Line 7 of Clause 2 in order to satisfy Mr Lever's (DP) concern that the bill did not explain in detail when the Courts should look at International Law. Mr. Lever responded that adding the term "relevant" would only cloud the issue, because the document does not explicate a method for determining when it is relevant to apply international law. Therefore, Mr Lever requested that the Committee withdraw the amendment because it causes more difficulties than it attempts to cure. The Committee agreed.

Next, the Committee looked at an important change made to Clause 10. The amendment allows the National Director of the NPA to appeal the decision of a magistrate not to issue an order committing a person to prison to a High Court having jurisdiction. The amendment sets out the technical parameters for how this is to be done. The Committee unanimously accepted the amendment.

Finally, the Committee accepted an amendment to Schedule 2 adding necessary wording that had been mistakenly left out.

After discussing these amendments, the Committee unanimously passed the ICC Bill.

Appendix 1
Proposed Amendments
Report of the Select Committee on Security and Constitutional Affairs (National Council of Provinces) on the Implementation of the Rome Statute of the International Criminal Court Bill [B42B-2001] (National Assembly - sec 75), dated 25 June 2002, as follows:

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Implementation of the Rome Statute of the International Criminal Court Bill [B42B-2001] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 2
1. On page 5, in line 7, after "comparable", to insert "relevant".

CLAUSE 10
1. On page 8, from line 28, to omit subsection (8) and to substitute:

(8) (a) No order for the surrender of any person may be executed -
(i) before the period allowed for an appeal as contemplated in this section has expired, unless that person has waived his or her right of appeal in writing; or
(ii) before such an appeal has been disposed of.
(b) Any person against whom an order has been issued under subsection (5) may, within seven days after the date of the order, appeal to a High Court having jurisdiction against a decision of the magistrate whether one or more of the requirements referred to in subsection (1)(a) to (c) have been complied with.
(c) The National Director may, within seven days after the date of a decision of a magistrate not to issue an order committing a person to prison pending his or her surrender to the Court, as contemplated in subsection (5), appeal against such a decision to a High Court having jurisdiction.
(d) On appeal such High Court must make a decision whether the requirements referred to in subsection (1)(a) to (c), as appealed against, have been complied with and make an order which, in the opinion of the High Court in question, the magistrate should have made in the first place.
(e) If an appeal in terms of -
(i) paragraph (b) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, immediately cancel the order referred to in section 10(5), notify the Court thereof through the Central Authority and cause the person who lodged the appeal to be released from custody if he or she is in detention;
(ii) paragraph (c) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, after causing sufficient notice to be given to the person in question and to the National Director, inform the person in question of the order of the High Court.
(f) Notice to the person in question as contemplated in paragraph (e)(ii) must be a written notice to that person calling upon him or her to appear at a stated place and time on a stated date in order that the magistrate can inform the person of the order of the High Court, as contemplated in paragraph (e)(ii), whereupon the provisions of section 54(2) and 55(1) and (2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply with the necessary changes.
(g) The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must, within six months after the date of commencement of this Act, make and implement rules of procedure which provide for the expeditious and urgent finalisation of an appeal contemplated in this section.
(h) Any rule made under paragraph (g) must, before publication thereof in the Gazette, as contemplated in section 6(4) of the Rules Board for Courts of Law Act, 1985, be approved by Parliament.

SCHEDULE 2

1. On page 23, in the third column of the item relating to "Act No. 16 of 1999", after "2002" to insert:

the matter must be dealt with in accordance with that Act

Appendix 2
Clause 10 Amendments

(8) (a) No order for the surrender of any person may be executed -
(i) before the period allowed for an appeal as contemplated in this section has expired, unless that person has waived his or her right of appeal in writing; or
(ii) before such an appeal has been disposed of.
(b) Any person against whom an order has been issued under
subsection (5) may, within seven days after the date of the order, appeal to a High Court having jurisdiction against a decision of the magistrate whether one or more of the requirements referred to in subsection (1)(a) to (c) have been complied with.
(c) The National Director may, within seven days after the date
of a decision of a magistrate not to issue an order committing a person to prison pending his or her surrender to the Court, as contemplated in subsection (5), appeal against such a decision to a High Court having jurisdiction.
[(c)](d) On appeal such High Court must make a decision whether
the requirements referred to in subsection (1)(a) to (c), as appealed against, have been complied with and make an order which, in the opinion of the High Court in question, the magistrate should have made in the first place.
[(d)](e) If an appeal in terms of [this section] -
(i) paragraph (b) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, immediately [-
(i)] cancel the order referred to in section 10(5), [;
(ii)] notify the Court thereof through the Central Authority; and
[(iii)] cause the person who lodged the appeal to be released from custody if he or she is in detention; or
(ii) paragraph (c) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, after causing sufficient notice to be given to the person in question and to the National Director, inform the person in question of the order of the High Court.
(f) Notice to the person in question as contemplated in paragraph (e)(ii) must be a written notice to that person calling upon him or her to appear at a stated place and time on a stated date in order that the magistrate can inform the person of the order of the High Court, as contemplated in paragraph (e)(ii), whereupon the provisions of section 54(1) and 55(1) and (2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply with the necessary changes.
[(e)](g) The Rules Board for Courts of Law established by section
2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must, within six months after the date of commencement of this Act, make and implement rules of procedure which provide for the expeditious and urgent finalisation of an appeal contemplated in this section.
[(f)](h) Any rule made under paragraph [(e)](g) must, before
publication thereof in the Gazette, as contemplated in section 6(4) of the Rules Board for Courts of Law Act, 1985, be approved by Parliament.