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

298 Chapter 13
The procedure for the trial of all offences under the Penal Code Act is
outlined in the Criminal Procedure Code Act. 98 Section 3 of the Criminal
Procedure Code Act confirms that all offences under the Penal Code Act,
unless the contrary is stipulated, can be tried by the High Court of
Zambia. 99 The provisions of Part IV of the Criminal Procedure Code also
confirm the territorial limits of the jurisdiction of the courts of Zambia.
Under section 65 of the Code it is the presence of an accused person within
the jurisdiction of a court after having committed an offence within
Zambia which makes one liable to the jurisdiction of Zambian courts.
Although the Criminal Procedure Code Act provides extensive detail
about how criminal trials in Zambia must be conducted, just as is the case
in Malawi, the challenge is that the Rome Statute offences are not formally
codified in any Zambian statute. This means that there is a grave lacuna in
terms of how Zambia would deal with Rome Statute crimes should there
be an allegation that these have been committed in Zambia. This would,
obviously, affect Zambia’s compliance with its obligations, as a state party,
under the Rome Statute.
Again, one may argue that Zambia could address these lacuna by
relying on international law and the principle of universal jurisdiction.
Although this may appear an innovative way of surmounting this
legislative gap, the same complications that the chapter highlighted in the
case of Malawi are also largely applicable here. Zambia, it must be
recalled, is also a dualist state. This means that the Rome Statute and its
provisions will not become part of the laws of Zambia until a
domesticating statute has been passed. In the absence of a domesticating
statute, notably, Zambia still has obligations under the Rome Statute but
the Statute does not have the force of domestic law in the country.
Domestically, therefore, the provisions of the Rome Statute are practically
irrelevant before the Zambian courts. The point to highlight here is that for
a state to properly fulfil its obligations under the Rome Statute it needs to
domesticate the Rome Statute. Without domestication, the concerned
state will find many of its domestic laws at odds with provisions in the
Rome Statute in many aspects.
5.1.2 Law on official immunities
Zambia, just like Malawi, will also have to conduct a proper review of its
laws on official immunities if it is to properly fulfil its obligations under the
Rome Statute. The Zambian Constitution provides for the immunity of the
person holding the office of President even though this is not in the same
breadth as in Malawi. 100 The Zambian Constitution, seemingly,
recognises that this immunity is not absolute. Although no civil or criminal
98 Ch 88 Laws of Zambia.
99
See also sec 5 Criminal Procedure Code Act.
100 See sec 43 Constitution of Zambia.