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

290 Chapter 13
Constitution, 62 this recourse cannot resolve the glaring lacunae that we
have just pointed out.
4.1.2 The law on official immunities
Official immunities generally provide for exemptions from investigation
and prosecution over conduct that would otherwise render one liable to
prosecution and investigation. These immunities will often arise as a result
of a person’s position at the time of the commission of the alleged offence.
The office of head of state and most diplomatic and consular positions
accord varying degrees of immunity from prosecution and investigation to
their holders. The Rome Statute, however, presents a radical departure
from the ‘traditional’ position on immunities. In as far as offences under
the Rome Statute are concerned, immunities have been rendered
obsolete. 63 The effect is that one cannot raise official immunity as a bar to
an investigation or prosecution by the Court.
Article 27 of the Rome Statute – which bars official immunities – has
very serious implications for many African countries, especially those that
have constitutional provisions guaranteeing immunity to their heads of
state. This apparent tension between municipal constitutions’ provisions
on immunity and the Rome Statute, however, has also been the subject of
serious discussion among some European state parties to the Statute. 64 It
is notable that, he irrelevance of official capacity as provided in article 27
has been declared to be incompatible with the domestic constitutions of,
for example, Belgium, 65 France 66 and Luxembourg. 67 In spite of the
tensions that article 27 supposedly generates it is clear that all state parties
to the Statute are under an obligation to realign their domestic provisions
to give effect to article 27. As will be demonstrated below, the evolving law
on official immunities actually supports a limited version of immunity
which fundamentally differs from the provisions in most domestic laws.
Having regard to provisions in Malawi’s laws that provide for
immunity, it will be important to properly reconcile the Rome Statute’s
position on immunity with local law during the domestication process. For
example, under section 91(2) of the Constitution of Malawi, President
cannot be charged with any criminal offence during the subsistence of his/
62
63
64
Sec 11(2)(c) Constitution of the Republic of Malawi.
Art 27 Rome Statute.
For a fuller discussion of the positions of some European countries with respect to art
65
27 of the Statute, see BC Olugbuo (n 44 above) 21-22 & 27-30.
See Opinion of the Council of State of 21 April 1999 on a legislative proposal approving
the Rome Statute on the International Criminal Court Parliamentary Document 2-239
66
(1999/2000) 94.
See Decision 98-408 DC of 22 January 1999 (Treaty on the Statute of the International
67
Criminal Court) Journal officiel 24 January 1999 1317.
See Opinion of the Council of State on the draft laws concerning the approval of the
Rome Statute on the International Criminal Court 4 May 1999, 44.088.