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

Implementation of the Rome Statute in Malawi and Zambia 279
discern the progress that these two countries have made in implementing
the Rome Statute. The chapter also explores the challenges that these
countries are facing in implementing the Rome Statute and also provides
an indication of the prospects for the domestication of the Statute in these
two countries. Having regard to the current prominence of the debate on
the Court and Africa, the chapter begins with a brief discussion of the
position of Africa with regards to the Court. The chapter then explores the
general question on the need for domestication of the Rome Statute before
going into a discussion of the progress, challenges and prospects for the
domestication of the Statute in the two countries under discussion.
2 Africa and the International Criminal Court
The role of the ICC in Africa has generated much comment and mixed
reaction among a broad spectrum of Africans. 13 Considerable bad
publicity has marred the relations between Africa and the ICC in recent
months. While five of the situations currently under investigation by the
Court are all from Africa, it is arguable that a general African animosity
towards the Court may have been heightened by the Security Council’s
referral of the situation in the Darfur to the Court and the subsequent
indictment of the Sudanese President Omar Al Bashir. The indictment of
the Sudanese President, particularly, has resulted in criticism from some
quarters of the ICC as a ‘Western tool, designed to subjugate leaders of the
African continent and advance an imperialist agenda’. 14 Similarly, the
exercise of proprio motu powers of the Prosecutor in relation to the Kenyan
situation has resulted into much criticism. The three African situations
under investigation by the ICC – Uganda, the Democratic Republic of the
Congo (DRC) and the Central African Republic (CAR) 15 – have not
caused as much uproar, arguably, because these situations are before the
ICC as a result of referrals by the state parties concerned. 16
The current tensions between some African countries and the ICC,
unfortunately, have the propensity of undermining and blemishing
13 MJ Adriko ‘The obligations of state parties under the Rome Statute’ Workshop
organised by Uganda Coalition on the International Criminal Court, Entebbe 5-6
September 2008, http://www.apilu.org/Presentation_made_by_Adrilo_Moses_on_
the_domestication_of_the_Rome_Statute_in_Africa.pdf (accessed 16 March 2010).
14 Coalition for the International Criminal Court ‘Africa and the International Criminal
Court’ http://coalitionfortheicc.org/documents/Africa_and_the_ICC.pdf (accessed 17
March 2010).
15 See http://www.icc-cpi.int/menus/icc (accessed 9 September 2010). Notably, on 31
March 2010 the Pre-Trial Chamber II granted the prosecution authorisation to open an
investigation proprio motu in the situation of Kenya - http://www.icc-cpi.int/Menus/
ICC/Situations+and+Cases/ (accessed 9 September 2010).
16 These referrals can be made under art 14 of the Rome Statute. Although art 15 of the
Rome Statute grants the Prosecutor the ability to initiate investigations on his own, the
Office of the Prosecutor has generally encouraged states parties to refer situations for
investigation to the Court – ‘Paper on some policy issues before the Office of the
Prosecutor’ http://www.amicc.org/docs/OcampoPolicyPaper9_03.pdf (accessed 16
March 2010).