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

Implementation of the Rome Statute in Malawi and Zambia 291
her term in office. To the credit of the Malawian Constitution, section
91(3) opens the way for holding ex-presidents to account for any acts
committed by them outside of their official capacities. 68 Further, under the
Immunities and Privileges Act, 69 various protections are offered to
consular and diplomatic staff in Malawi. These privileges necessarily mean
that persons occupying diplomatic positions may not be brought to
account before Malawian courts for actions done by them while in office.
It is unlikely, however, that the immunities under the Immunities and
Privileges Act cover war crimes, crimes against humanity and genocide.
In relation to immunities, it is important to note that while the
Malawian Constitution seems to provide blanket immunities to, for
example, the President, emerging international practice recognise a more
limited immunity. 70 Emerging jurisprudence strongly suggests two
things. 71 Firstly, there can be no immunity with regard to the crimes that
the Court deals with. Secondly, immunity is only with regard to the official
acts of the person concerned. This means that there can be no immunity
with regard to activities that are patently illegal. The fact that international
law seems to recognise a more limited version of immunity while the
Constitution of Malawi recognises a broader immunity is one of the issues
that can only properly be resolved through a domestication statute. On the
face of it, the provisions of the Constitution must reign supreme. 72
However, one must recall that international law is only applicable in
Malawi if its stipulations do not conflict with any local law. 73 While the
Malawian courts will strive to avoid a clash between local law and
international law, where such a clash occurs local law will always prevail.
Irrespective of the provisions in Malawi’s laws it is clear that should, by
way of illustration, a former head of state for Malawi find himself before
the ICC, such a person will not be allowed to raise his/her immunity for
offences under the Rome Statute. In the main the resolution of this issue
raises the perennial debate about the superiority of either municipal law or
international law, especially when considered from a municipal
perspective. It should be stated that each regime retains superiority within
its own sphere of influence. 74
68 Sec 91(3) states thus: ‘After a person has vacated the office of President, he or she shall
not be personally liable for acts done in an official capacity during his or her term of
office but shall not otherwise be immune.’
69 Ch 16:01 Laws of Malawi. The Immunities and Privileges Act also achieves a
domestication of the Vienna Convention on Diplomatic Relations of 1961.
70 The turning point in international law seems to be the Treaty of Versailles which lifted
the immunity of a head of state for ‘a supreme offence against international morality
and the sanctity of treaties’ – art 227 of the Treaty of Versailles, 1919. For the Treaty of
Versailles, see http://net.lib.byu.edu/~rdh7/wwi/versailles.html (accessed 29 March
2010).
71
In R v Bow Street Metropolitan Stipendiary Magistrate: Ex Parte Pinochet Ugarte (No 3) [1999]
2 WLR 872; [1999] 2 All ER 97 (HL).
72 Sec 5 Constitution of the Republic of Malawi.
73
In the matter of Chifundo James (A female infant) (n 61 above).
74 I Brownlie (n 42 above) 33.