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

284 Chapter 13
passed domesticating statutes to date. 38 The slow progress on the domestic
implementation of the Rome Statute, Dugard claims, 39 may be evidence
of a common African pattern. As Dugard further explains, African
countries on the one hand, have often played a constructive and
progressive role in the development of new norms and institutions at the
international level. On the other hand, Africa has noticeably lagged behind
in the domestic implementation of these norms and also in the
establishment of institutions to support the institutions created at the
international level.
While Dugard’s argument may have merit, it is important to bear in
mind, as Odinkalu argues, that Africa’s slow pace of domestication may
largely be connected to a lack of capacity in most African states. 40 Bekou
and Shah identify three reasons that, supposedly, affect the rate of
domestication of the Rome Statute in Africa. 41 Firstly, the authors posit
that implementation is slow because the drafting and subsequent passing
of implementing legislation is inherently a time-consuming process that
may sometimes also depend on the prevailing political will. This has
meant that while some countries have come up with draft implementing
legislation this has often remained in draft form for what is clearly an
inordinate period of time. Secondly, the authors argue that the
complexities involved in drafting implementing legislation have also
slowed down domestication in some countries. Some countries, it is
contended, simply do not have the resources and the expertise to properly
engage in the domestication process. In the absence of external help such
countries are unlikely to make any significant progress on domestication
anytime soon. Thirdly, Bekou and Shah also argue that the delay in
domesticating the Statute could simply be because some countries assume
that domestication is not necessary because they follow the monist
tradition. This perception, however, is not very correct. 42 Needless to state
that the subtleties of the Rome Statute and the manner in which monism
is applied in practice necessarily require that some steps towards
domestication be undertaken even in monist states.
While the general principles of treaty interpretation – notably pacta sunt
38 These countries are South Africa, Kenya, Uganda, Senegal, Burkina Faso, Niger and
Burundi. Draft domesticating legislation exists in about twenty African countries and
the process of adopting it is almost complete in a few of the twenty countries - http://
coalitionfortheicc.org/documents/Africa_and_the_ICC.pdf (accessed 17 March 2010).
39 J Dugard (n 17 above) 229.
40 C Odinkalu ‘Back to the future: The imperative of prioritising for the protection of
human rights in Africa’ (2003) 47 Journal of African Law 1 24.
41 Bekou & Shah (n 36 above) 502-505.
42 Monism, as Brownlie notes, is represented by a number of jurists whose theories
diverge in significant aspects. This, obviously, has implications for the practical
application of the doctrine – I Brownlie Principles of public international law (2008) 31-33.