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

300 Chapter 13
trial. While the Rome Statute itself has elaborate provisions regulating
how the Court must co-operate with state parties for the purposes of the
surrender of suspects, most of the states parties in Africa have yet to realign
their local laws to comply with the Statute. Zambia is one such state.
The principal statute which regulates the extradition and surrender of
suspects in Zambia is the Extradition Act. 105 It is clear from a reading of
the Act that the extradition that the Act seeks to regulate is between
Zambia and other countries and that no provision is made for the
processing of extradition requests from an international organisation. 106
Further, the Extradition Act necessarily requires that the conduct for
which extradition is sought be criminal both in Zambia and the requesting
state. 107 The provisions of the Extradition Act are, arguably,
supplemented by the Mutual Legal Assistance in Criminal Matters Act. 108
This piece of legislation, according to its long title, is meant to provide for
the implementation of treaties of mutual legal assistance in criminal
matters. Under the Act, legal assistance in criminal matters is rendered by
Zambia to the countries listed in the Order made by the Minister under
section 5. The ICC is not listed in the Order. 109 While the Mutual Legal
Assistance in Criminal Matters Act may supplement the provisions and
procedures under the Extradition Act, it is important to note that nothing
in the Mutual Legal Assistance in Criminal Matters Act can be interpreted
to authorise the extradition or arrest or detention with a view to extradition
of any person. 110 This means that for purposes of extradition and
surrender the principal framework remains that in the Extradition Act.
The above position highlights several complications that are likely to
arise should there be an immediate need for Zambia to honour a request to
surrender a suspect to the ICC. In the first place, the fact that there is no
formal framework for co-operation between Zambia and the Court would
create delays and complexities before Zambia could honour such a
request. In the absence of such a framework Zambia would have to either
quickly enact domesticating legislation or negotiate an ad hoc co-operation
agreement with the Court. In the second place, the entire regime for
extradition of offenders in Zambia is practically irrelevant in as far as cooperating
with the ICC is concerned. The ICC is not among the entities
that the Act recognises as deserving co-operation under the Act and neither
105 Ch 94 of the Laws of Zambia.
106 The countries with which Zambia can co-operate with for extradition purposes are
broadly divided into commonwealth countries and foreign countries and there is the
explicit assumption that the extradition arrangement will convey reciprocal obligations
and benefits – see, generally, secs 3 & 45 of the Act. Again an innovative way to look at
the issue is to think of Zambia as ‘surrendering’ suspects under the aegis of the Rome
Statute rather than extraditing under its own laws.
107 Sec 4 of the Act; sec 17 Extradition Act.
108 Ch 98 Laws of Zambia.
109 See The Mutual Legal Assistance in Criminal Matters (Specified States) Order,
Statutory Instrument 95 of 1996.
110 Sec 4(2) Mutual Legal Assistance in Criminal Matters Act.