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

296 Chapter 13
committed to fighting impunity. It remains to be seen how expediently
Malawi will match its verbal commitment with concrete action.
As Malawi contemplates the domestication of the Rome Statute it is
important to realise that the process of domestication itself may,
admittedly, be long and tedious. It is a process in which a deliberate
attempt to involve all stakeholders must consciously be undertaken,
especially having regard to the need to synchronise the subtleties of the
Rome Statute with domestic law. This process must build on existing
foundations and progress already made to further clarify the
complementarity and co-operation between Malawi and the Court. For
example, a determination will have to be made whether to incorporate
article 5 of the Rome Statute in the domesticating statute to be passed or
include this in the Penal Code. It is worth noting that the amended Penal
Code has already attempted to include some elements of the crimes under
the Rome Statute and for this reason it may be sensible to keep all the
crimes under the Penal Code while reserving all other issues for the
implementing legislation. 91
Related to the above, to properly involve all stakeholders in the
drafting of implementing legislation there is the obvious need of harnessing
the full potential of civil society in the country. Civil society’s network
across the country ought to be utilised to galvanise a broad-based
discussion over all issues pertaining to the Rome Statute and Malawi. This
would help confer legitimacy on the entire process of domestication. It is
important to note, as Dugard has argued, that some of the animosity in
Africa about the ICC may be as a result of a failure by civil society to
generate awareness about the Court and the need to pass domesticating
legislation. 92 It is thus incumbent on the government of Malawi to take
deliberate steps to engage all stakeholders in the process of crafting
implementing legislation.
5 Zambia and the International Criminal Court
Largely as a result of a common colonial history, Zambia’s legal system
bears significant similarities to that of Malawi. This means that Zambia
faces challenges that are broadly similar to Malawi in domesticating the
Rome Statute. Most of the general points that were made in connection
with Malawi are thus relevant for Zambia as well. These two countries,
however, have not made similar progress on the implementation of the
Rome Statute and in the following section the chapter will discuss the
91 The Malawi Law Commission completed its review of the Penal Code in 2000. The
recommendations have yet to be passed by parliament and may, in the light of the
passage of time, have to be reviewed again before parliament can enact them – Malawi
Law Commission Report on the review of the Penal Code (2000).
92 J Dugard (n 17 above) 229 230.