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

classified as genocide. 59
Implementation of the Rome Statute in Malawi and Zambia 289
One may argue that these lacunae may be addressed by having recourse
to international law, as this is recognised as a source of law in Malawi. 60
While international law is a valid source of law in Malawi, it is important
to realise that a blanket recourse to it does not avert the necessity of
domesticating the Rome Statute. Malawi is a dualist state and while
customary international law, except where it is inconsistent with the
Constitution is automatically binding on Malawi, all other treaties require
a domesticating statute before they can form part of the laws of Malawi. 61
This means that even though Malawi is a party to the Rome Statute the
Statute will not be part of the laws of Malawi until Malawi passes a
domesticating statute. It is through the mechanism of a domesticating
statute that Malawi would then provide for the specifics about its
relationship with the Court. As earlier intimated the multitude of
obligations that the Rome Statute creates will only be fully and
meaningfully resolved if Malawi domesticates the Rome Statute.
In relation to the sources of criminal law and the place of international
law in Malawi vis-à-vis the International Criminal Court, the following – to
mention but a few – emerge: the Rome Statute is not part of the laws of
Malawi – admittedly, Malawi as a state party has the obligation to comply
with its provisions – and thus its provisions have no direct applicability
before any Malawian court. The crimes that the Rome Statute covers are
not, with the partial exclusion of genocide, expressly recognised in
Malawi. In the case of the partial recognition of genocide, not only is there
no definition in Malawian law of this offence, no procedures exist for the
proper handling of this offence should there be a case alleging its
commission in Malawi. Although the Constitution mandates Malawian
courts to have regard, where applicable, to current norms of public
international law and comparable foreign case law in interpreting the
59 As a state party to the Rome Statute one would hope that the definition of genocide in
the Statute would be highly persuasive in understanding genocide in Malawi, even in
the absence of a definition in Malawian law. Strangely, Malawi is not a party to the
Genocide Convention of 1948. For a list of the state parties to the Genocide
Convention, see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg
_no=IV-1&chapter=4&lang=en (accessed 29 March 2010).
60 Sec 211 Constitution of the Republic of Malawi.
61
Sec 211 of the Constitution provides for the application of international law in Malawi.
This provision, however, is not free from ambiguity. Practice in Parliament has further
confused matters and it is now no longer clear as to how international treaties are to
come into force in Malawi. As Kanyongolo notes, poor wording of sec 211 or not, there
is no specific legislation in Malawi that sets out the appropriate procedure for
incorporation of international law – FE Kanyongolo (n 57 above) 33-34. One hopes
that the Malawi Supreme Court of Appeal has clarified the issue in In the matter of
Chifundo James (a female infant) MSCA Adoption Appeal 28 of 2009 (unreported).