Prosecuting International Crimes in Africa - PULP - University of ...

218 Chapter 9
Council of the United Nations, yet the Security Council comprises
member states not party to the Rome Statute. According to the petitioner
this erodes the partiality and independence of the ICC, violating the
provisions of articles 126(2) and 128(1) of the Constitution. Article 126(2)
requires courts in adjudicating cases to apply principles which include
applying justice to all irrespective of their social or economic status; that
justice shall not be delayed; that adequate compensation is to be awarded
to victims; the promotion of reconciliation; and that justice be
administered without undue regard to technicalities. Article 128(1)
provides that in the exercise of judicial power, courts be independent and
not subject to the control or direction of any authority.
The petitioner’s second claim is that constitutionally the ICC is not
part of the hierarchy of courts as envisaged by the Constitution. The
petitioner also argues that sections 7(3), 8(3), 9(3), 15 and 16 of the ICC
Act are discriminatory and unconstitutional for prescribing penalties that
are less than those for the same crime punishable under sections 188 and
189 of the Penal Code Act. This is inconsistent with article 21(1), (2) and
(3) of the Constitution. As already indicated above, section 189 of the
Penal Code Act defines death as the maximum penalty. Article 21 of the
Constitution relates to equality and freedom from discrimination. In effect,
the petitioner is arguing that while a person charged with wilful killing
under the Penal Code Act faces the possibility of death, a person charged
with wilful killing under the ICC Act may only be imprisoned for life as the
maximum penalty, which is discriminatory.
The petitioner also challenges section 19(v) of the ICC Act, which
excludes persons under 18 years from being subjected to the Act. It is
claimed that this is inconsistent with articles 2 and 34(6) of the
Constitution, which subject children to the law. The petitioner argues that
this is discriminatory. Article 34(6), which the petitioner refers to, provides
that a child offender who is kept in lawful custody or detention shall be
kept separately from adult offenders. The relevance of this provision is not
clear and would probably be clarified at the hearing.
Furthermore, the petitioner also contests section 25 of the ICC Act
which excludes immunity of state officials as a ground for not arresting and
handing over an indicted person. The petitioner avers that this section is
inconsistent with articles 98(4) and (5) and 128 of the Constitution. Article
98(4) provides that while holding office, the President shall not be
subjected to proceedings in any court. Similarly, article 128(4) provides
that a person exercising judicial power is not subject to any act or omission
in the exercise of judicial power.
Also contested is section 31 of the ICC Act which makes provision for
bail applications. The section requires a magistrate before whom an
application is made to adjourn the hearing and notify the Minister of
Justice, who shall in turn consult the Pre-Trial Chamber of the ICC. The