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

302 Chapter 13
Having draft legislation in place can be equated to a serious
manifestation of intent to comply with the Rome Statute. As pointed out
in the case of Malawi, the process of coming up with draft implementing
legislation and finally passing it into law can be long and tedious and so it
seems to be the case with Zambia. While Zambia must be commended for
initiating the process of coming up with the draft legislation, it needs to
take the final step and transform the draft into binding legislation before it
can fully comply with its obligations under the Rome Statute. Only when
this legislation is in force can it be said that Zambia has properly aligned
itself to fulfil its obligations under the Rome Statute. This would also
properly align Zambia to co-operate with the Court in line with the Statute
while at the same time allowing the Court to complement Zambia’s efforts
towards eradicating impunity.
In the process of pushing for the final adoption of the Rome Statute
implementing legislation, Zambia ought to fully utilise the potential of civil
society. This would enable, not only for there to be widespread
sensitisation of the legal regime that Zambia has decided to subject itself
to, but would also ensure that there is a broad-based consultation on the
issues concerned. A thorough consultation on the draft legislation would,
in the event the legislation is used to extradite Zambian nationals in future,
for example, lessen the animosity that the populace in Zambia would have
towards the court.
6 Conclusion
From the discussion in this chapter it must have emerged quite clearly that
states must move beyond mere ratification and take concrete steps towards
domestication of the Rome Statute if they have to properly fulfil their
obligations under the Statute. The case for domestication of the Rome
Statute, as was demonstrated earlier in the chapter, is highly compelling
and flows, principally, from a state party’s signature and/or ratification of
the Statute. For all those states that have signed and/or ratified the Rome
Statute domestication must come as a matter of course.
The situation in both Malawi and Zambia exemplifies the numerous
huddles that state parties that have signed and/or ratified the Rome
Statute, but not domesticated it, are likely to find themselves in. It is
immaterial that there may not immediately be suspected war criminals or
genocidaires in the two countries under discussion. Should, for example,
an instance arise where either Malawi and Zambia are required to
surrender a suspect to the ICC, myriad issues would arise that would
complicate any purported surrender. As a matter of fact, any surrender of
suspects and many other forms of co-operation with the ICC in Zambia
and Malawi, at the current state of law, are likely to be challenged for
legality. In all this, it must be constantly recalled that the efficacy and
vibrancy of the ICC is dependent on the enthusiasm of states in