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

Implementation of the Rome Statute in Malawi and Zambia 295
4.2 Existing challenges and the way forward
In as far as Malawi’s obligations under the Rome Statute are concerned,
the biggest challenge remains the lack of implementing legislation. It is
hard to imagine how Malawi can effectively give meaning to both the
complementarity and co-operation principles under the Rome Statute
without legislation that defines how this must be achieved. For example,
as earlier highlighted, Malawi’s provisions on extradition and official
immunities are not in line with the Rome Statute. These inconsistencies
necessarily mean that there would be serious conflicts and contradiction
should, for example, there be a need for Malawi to surrender a suspect to
the ICC. 87 Needless to state that at the moment there would be no ‘basis’
for Malawi to surrender any suspect to the ICC. Under the current
framework any attempted surrender may be challenged for illegality. The
need to harmonise the immunity regime under the Statute with domestic
legislation also offers another compelling reason why Malawi must take
deliberate steps to domesticate the Rome Statute.
On a positive note, it is encouraging to learn that Malawi has
expressed its commitment to the adoption of legislation domesticating the
Rome Statute. 88 The country recognises that the promulgation of
implementing legislation is an essential step in the process of co-operation
and complementing the work of the ICC. 89 Perhaps unwittingly, Malawi’s
assumption of the Chairmanship of the African Union (AU) in 2010 has
thrust its position on the Rome Statute into the limelight. It is arguably in
this vein that Malawi’s Deputy-Minister of Foreign Affairs stated that
Malawi, as Chair of the AU, will lead by example in domesticating the
Rome Statute. 90 Domesticating the Rome Statute will be Malawi’s clearest
statement of its intention to be part of the global community that is
87 The lack of Rome Statute implementing legislation brings to mind the dilemma that
Malawi once faced when a hijacked plane was landed at Chileka Airport in Blantyre
when the country had no legislation on hijacking. The result was that the offenders
were tried on a series of other ‘lesser’ offences, eg, demanding property with menaces
with intent to steal the same, wrongful confinement of people and being in possession
of explosives without permit – see Republic v Kamil & Yaghi 1971-72 ALR Mal 358. Such
a situation must not be allowed to happen again.
88 Keynote address by Honourable AG Mtendere, Deputy Minister of Foreign Affairs on
behalf of A Peter Mutharika, Minister of Justice and Constitutional Affairs during the
opening of the Workshop on the International Criminal Court and implementing
legislation for Malawi, 26-27 February 2010, Lilongwe, Malawi. Rather dishearteningly
is the fact that it has been reported that Malawi indicated it had commenced the process
of enacting cooperating legislation in 2002 - http://coalitionfortheicc.org/documents/
ICCAfrica_Issue1_Jun06_en.pdf (accessed 25 March 2010).
89 As above.
90 Keynote address by Honourable AG Mtendere. The Malawi Law Society has also
recommended that government should adopt a clear strategy to ensure a timely
adoption of the implementing legislation. See also International Bar Association ‘Legal
profession of African Union’s new Chair stands firm on commitment to the adoption of
Rome Statute implementing legislation’ http://www.ibanet.org/Article/
Detail.aspx?ArticleUid=26B7E703-E35E-40EC-90F0-8F4B8F352774 (accessed 23
March 2010).