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

54 Chapter 2
address impunity and to take appropriate measures to bring before
competent courts the perpetrators of genocide, war crimes and crimes
against humanity in accordance with the Genocide Convention and the
Rome Statute. Relevant is article 12 of the Protocol which provides that:
The provisions of this chapter shall apply to all persons suspected of
committing the offences to which this Protocol applies, irrespective of the
official status of such persons. In particular, the official status of a Head of
State or Government, or an official member of a Government or Parliament,
or an elected representative or agent of a State shall in no way shield or bar
their criminal liability.
Since the Protocol was adopted with the provisions of the Rome Statute in
mind, it is not surprising that article 12 of the Protocol replicates the
contents of article 27 of the Rome Statute. The Protocol is the only strong
legal instrument in Africa at present which specifically does not recognise
the immunity of state officials from prosecution for international crimes,
and calls for punishment of persons who commit international crimes. It is
a major sub-regional effort to curb the rising trend of international crimes
by state and private individuals in Africa.
Next I examine how national laws in Africa have addressed the
question of immunity of state officials. Although immunity is addressed in
many constitutions of African states, 111 the focus here is only on specific
laws that have been enacted to proscribe and punish international crimes.
In this regard, only laws implementing the Rome Statute at domestic level,
and those which do not implement the Rome Statute but address
international crimes in specific African states, are considered. Only a few
African states have enacted laws implementing the Rome Statute; some
have enacted other laws on international crimes thereby outlawing the
defence of immunity of state officials.
Rwanda enacted Organic Law 08/96 of 30 August 1996 on the
Organisation of Prosecutions for Offences constituting the Crime of
Genocide or Crimes against Humanity committed since 1 October 1990.
In 2003, Rwanda enacted Law 33 Repressing the Crime of Genocide,
Crimes against Humanity and War Crimes. Section 18 outlaws the
immunity of state officials for these international crimes. The Rwandan
laws on international crimes were enacted after the aftermath of the
genocide committed in Rwanda in 1994. Rwanda is not a state party to the
Rome Statute.
111 Sec 30 Constitution of the Republic of Zimbabwe (‘Presidential immunity’); art 46
Constitution of the United Republic of Tanzania, 1977 (as amended); art 98
Constitution of the Republic of Uganda, 1995; sec 34(1)-(5) First Schedule to the
Constitution of the Republic of Ghana, 1992; Constitution of the Fourth Republic of
Ghana (Promulgation) Law, 1992; secs 28(1), 34bis and 35(1)-(3) Constitution of the
Kingdom of Swaziland; art 61 Constitution of Liberia; art 48(4) Constitution of the
Republic of Sierra Leone, 1991.