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

288 Chapter 13
offences. Procedurally, the Criminal Procedure and Evidence Code 54
provides for the manner in which all criminal trials in Malawi must be
conducted. 55 What is immediately clear is that the regime of criminal law
in Malawi, like that of most countries, is territorial in nature. In essence,
the criminal law of Malawi only regulates conduct that has been
committed in Malawi. Additionally, however, the criminal law of Malawi
also regulates conduct that has been committed partly within Malawi and
partly outside Malawi where the perpetrator of the conduct happens to be
within the jurisdiction. 56
Ideally, therefore, Malawian courts can try crimes under the Rome
Statute should the perpetrator be found in Malawi and where it is proved
that the offence was committed in Malawi or partly in Malawi and partly
outside Malawi. The preceding, however, presumes that the offences in the
Rome Statute are already recognised and legislated for under Malawian
law. The actual situation, however, reveals a mixed and somewhat
confused picture. Genocide, crimes against humanity and war crimes are
not specifically dealt with in any Malawian statute. 57 Concededly, the
Constitution does state in section 17 that ‘acts of genocide are prohibited
and shall be prevented and punished’. Since the adoption of the
Constitution, however, no legislation has been adopted to provide further
detail to section 17 of the Constitution. 58 Section 17 thus remains a mere
exhortatory statement with regard to Malawi’s position on genocide. This
means that while the prohibition of genocide is recognised in Malawian
law there is no framework for dealing with any conduct that may be
54 Ch 8:01 Laws of Malawi.
55 All offences must be tried in accordance with the provisions of the Criminal Procedure
and Evidence Code except where a statute exists and provides for a different procedure
– sec 6 Criminal Procedure and Evidence Code.
56 Sec 5 Penal Code: ‘When an act which, if wholly done within the jurisdiction of the
court, would be an offence against this code, is done partly within and partly beyond
the jurisdiction, every person who within the jurisdiction does or makes any part of
such act may be tried and punished under this code in the same manner as if such act
had been done wholly within the jurisdiction.’ Sec 66 Criminal Procedure and
Evidence Code: ‘Every court has authority to cause to be brought before it any person
who is in Malawi and is charged with an offence committed within Malawi or partly
within and partly beyond Malawi or which according to law may be dealt with by it and
to deal with the accused according to its jurisdiction.’
57 Admittedly, Malawi is a party to the Geneva Conventions of 1949 but this is clearly not
enough for dealing with the crimes under the Rome Statute – see Geneva Conventions
Act Ch 12:03 Laws of Malawi. Under sec 4(1) of the Geneva Conventions Act
Malawian courts may exercise universal jurisdiction over grave breaches of the Geneva
Conventions but in practice no Malawian court has ever invoked this provisions – FE
Kanyongolo Malawi: Justice sector and the rule of law (A review by AfriMAP and Open
Society Initiative for Southern Africa) (2006) 33.
58 Constitutions normally provide in very general and broad terms. It is left to legislatures
to pass specific legislation that gives full meaning to the provisions in a constitution.