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

Implementation of the Rome Statute in South Africa 309
Africa's progressive Constitution 14 which contains an extensive list of
rights to which arrested, detained and accused persons are entitled. 15
The ICC Act is forward-looking in that it provides for the amendment
of domestic laws, such as the Criminal Procedure Act 51 of 1977 and the
Military Discipline Supplementary Measures Act 16 of 1999. Such
amendments will bring them in conformity with the definition of crimes
under the Rome Statute and deals with several other co-operation issues
such as arrest and surrender of persons and prosecution of offences against
the administration of justice in terms of the Rome Statute. As such, the
ICC Act provides for interpretations and definitions consistent with the
South African Constitution and the Rome Statute. 16
3 Analysis of the implementation of the
International Criminal Court Act
3.1 Complementarity
The ‘complementarity’ obligation placed on South African courts is
emphatically stated in the ICC Act. Section 3 of the Act defines as one of
its objects:
The enabling, as far as possible and in accordance with the principle of
complementarity, the national prosecuting authority of the Republic to
adjudicate in cases brought against any person accused of having committed a
crime in the Republic and beyond the borders of the Republic in certain
circumstances.
When coming to a decision about the prosecution of a perpetrator of an
international crime listed in the Rome Statute, section 5(3) requires the
National Director of Prosecutions to recognise South Africa’s obligation
under the principle of complementarity to exercise jurisdiction over and
prosecute persons accused of having committed an ICC crime. Therefore,
prosecutors and courts in South Africa are now in a position to investigate,
prosecute, try and sentence those persons guilty of the heinous conduct
that gives rise to these crimes. 17
Article 86 describes the general duty on states to co-operate fully with
the ICC in the investigation and prosecution of crimes. Article 87(7) goes
14 Du Plessis (n 7 above) 464.
15 See sec 35 of the Constitution of the Republic of South Africa, 1996.
16 See inter alia, BC Olugbuo ‘Domestic implementation of the Rome Statute of the
International Criminal Court: A comparative analysis of strategies in Africa’
Unpublished LLM Thesis, University of Pretoria, (2003) 39, available at http://
www.up.ac.za/dspace/bitstream/2263/1069/1/olugbuo_bc_1.pdf (accessed 18
December 2009).
17 Katz (n 4 above) 27. See also Du Plessis (n 7 above) 461.