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

Implementation of the Rome Statute in Malawi and Zambia 297
progress, prospects and challenges to the domestication of the Rome
Statute in Zambia. A similar thematic emphasis to that adopted for the
discussion on Malawi shall be followed.
5.1 Current framework for prosecuting and punishing
international crimes
5.1.1 Sources of criminal law and the place of international law in Zambia
As is the case in Malawi, the Zambian Penal Code Act 93 is the country’s
most comprehensive catalogue of prohibited conduct in the country. It
outlines all the offences for which one is liable to be arrested and tried in
Zambian courts. The jurisdiction of Zambian courts, for the purposes of
the offences under the Penal Code Act, is limited by Zambia’s territorial
reach. 94
Again, as is the case in Malawi, even though the Penal Code’s reach
is, strictly speaking territorial, it also applies to regulate criminal conduct
that is committed partly within Zambia and partly outside of Zambia. 95
Furthermore, if a citizen of Zambia engages in conduct outside Zambia
which would be against the Penal Code Act if committed in Zambia, he or
she is dealt with as if the conduct had been perpetrated in Zambia. 96
Notably, the Zambian Penal Code Act does not legislate for any of the
crimes covered under the Rome Statute. Arguably, there are offences
under the Penal Code Act that bear slight resemblances to the offences
under the Rome Statute. Among these offences would be, firstly, the
prohibition of the promotion of tribal war under section 46 of the Penal
Code Act. The second is the prohibition towards the demonstration of
hatred, ridicule or contempt for persons because of their race, tribe, place
of origin or colour in section 70 of the Penal Code Act. However, although
one may be persuaded to include these offences under the umbrella of war
crimes and crimes against humanity, respectively, it is worth noting that
the severity which offences need to attain before they fall under the Rome
Statute is absent in the above offences as codified in Zambia. For example,
under section 70 of the Penal Code Act the offence is punishable with only
two years imprisonment upon conviction. This means that the offence is
clearly treated as a misdemeanor. 97 This lack of severity, it is argued,
would generally remove the offences from the ambit of the International
Criminal Court.
93
Ch 87 Laws of Zambia.
94 Sec 5 Penal Code Act, Ch 87 Laws of Zambia.
95 Sec 6(2) Penal Code Act.
96
Sec 6(1) Penal Code Act.
97 See sec 4 Penal Code Act.