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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.
Implementation of the Rome Statute in Malawi and Zambia 299 proceedings may be commenced against a sitting President, the National Assembly can by resolution allow proceedings to proceed against a former President where it determines that such proceedings are not contrary to the interests of the state. 101 This in essence means that the Zambian National Assembly can waive the immunity that normally attaches to the office of the President. It is under the preceding arrangement that the Zambian National Assembly proceeded to lift the immunity of the former head of state, Frederick Chiluba, paving the way for his trial on corruption charges. 102 Further immunities in Zambian law are provided in the Diplomatic Immunities and Privileges Act. 103 As the short title to this Act indicates, this is an Act that is meant to give effect to the Vienna Convention on Diplomatic Relations and to provide for the immunities, privileges and capacities of certain organisations and persons. In furtherance of the preceding purpose the Act lists the provisions of the Vienna Convention on Diplomatic Relations which have the force of law in Zambia. 104 The Diplomatic Immunities and Privileges Act generally protects all diplomatic agents and diplomatic premises from interference by the law enforcement agencies of Zambia. In spite of Zambia’s extensive provisions on official immunity, one must realise that by signing up to the Rome Statute, Zambia has contracted to comply with a regime that, in essence, makes irrelevant all the elaborate provisions on official immunity. This is particularly true where the people sought to be conferred with the immunity are suspected of committing the offences listed in the Rome Statute. It is largely as a result of such inconsistencies that the need to properly domesticate the Rome Statute arises. Through the mechanism of domestication Zambia would then take a conscious effort to properly resolve this manifest inconsistency between provisions of its local law and its obligations under the Statute. While Zambia, like Malawi, may be stalling in harmonising its laws on official immunities, it is important to recognise that should a Zambian national be charged with Rome Statute offences, such a national would not be able to raise the immunity provided in local law as a defence. 5.1.3 The law regulating extradition and surrender As highlighted earlier in the chapter, the ICC relies on state parties to effect arrests and also facilitate the surrender of suspects to it for the purposes of 101 Sec 43(3) Constitution of Zambia. 102 The Zambian National Assembly removed former President F Chiluba’s immunity in 2002. He was subsequently tried and acquitted of corruption charges. See, ‘Zambians jubilate over lifting of Chiluba’s immunity’ at http://www.encyclopedia.com/doc/1P2- 13314964.html (accessed 25 March 2010). 103 Ch 20 of the Laws of Zambia. 104 Sec 3(1) and the First Schedule to the Diplomatic Immunities and Privileges Act.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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CHAPTER 8 1 Introduction THE TRIAL
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The trial of Hissène Habré in Sen
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CHAPTER 9 1 Introduction PROSECUTIN
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2 Genesis of the conflict Prosecuti
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Prosecuting international crimes by
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CHAPTER 10 1 Introduction GENOCIDE
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Genocide as prosecuted by the ICTR
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8 Reparations Genocide as prosecute
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234 Chapter 11 losses in excess of
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236 Chapter 11 piracy’. 14 In add
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238 Chapter 11 aircraft in accordan
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240 Chapter 11 and it is easy to av
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242 Chapter 11 phone. They took ove
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244 Chapter 11 3.3 Capacity problem
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246 Chapter 11 support us. They did
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Page 263 and 264: Positive complementarity and the fi
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Page 290 and 291: 278 Chapter 13 international crimin
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Page 294 and 295: 282 Chapter 13 countries has tended
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Page 298 and 299: 286 Chapter 13 crimes within their
Page 300 and 301: 288 Chapter 13 offences. Procedural
Page 302 and 303: 290 Chapter 13 Constitution, 62 thi
Page 304 and 305: 292 Chapter 13 4.1.3 The law regula
Page 306 and 307: 294 Chapter 13 either reciprocal or
Page 308 and 309: 296 Chapter 13 committed to fightin
Page 312 and 313: 300 Chapter 13 trial. While the Rom
Page 314 and 315: 302 Chapter 13 Having draft legisla
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Page 319 and 320: Implementation of the Rome Statute
Page 343 and 344: Books SELECTED BIBLIOGRAPHY Allen,
Page 345 and 346: Selected bibliography 333 Neier A (
Page 347 and 348: Selected bibliography 335 Chitiyo,
Page 349 and 350: Selected bibliography 337 Jalloh, C
Page 351 and 352: Selected bibliography 339 Roht-Arri
Page 353 and 354: Selected bibliography 341 Report on
Page 355 and 356: Table of cases 343 Right of Passage
Page 357 and 358: Table of cases 345 Prosecutor v Vas
Page 359 and 360: Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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