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

Immunity of state officials and prosecution of international crimes 55
In 2009, Burundi amended its Penal Code to include and punish
international crimes such as genocide, crimes against humanity, torture
and war crimes. 112 These crimes are defined as in the Rome Statute and
the Convention against Torture, 1984. Article 10 of Law 1/5 of 22 April
2009 creates universal jurisdiction for these crimes, and for acts of
terrorism committed outside Burundi. These crimes are punishable with
life sentences. One must note here that the Constitution protects the
President from prosecution, unless the National Assembly removes
immunity. 113
Article 10 of the Constitution of the Republic of Congo, 2001,
proscribes international crimes of genocide, crimes against humanity and
war crimes. Section 17 of the Constitution of Malawi, 1994, prohibits acts
of genocide. In 2002, South Africa enacted a law to implement the Rome
Statute, and outlawed the immunity of state officials for crimes recognised
under the Rome Statute. 114 This law recognise apartheid as a crime against
humanity. However, a state official, Adriaan Vlok, a former Minister of
Law and Order who was prosecuted in 2007 for apartheid crimes, 115 was
not prosecuted under this law, and was given a suspended sentence of 10
years imprisonment following a plea bargain with the National
Prosecution Authority under the Prosecution Policy, 2005. 116
Kenya has enacted the International Crimes Act, 2008, outlawing the
immunity of state officials in section 27. However, section 27 provides that
any request for arrest and surrender to the ICC may not be precluded by
immunity. Section 27 of this law further accords state officials with
immunity before courts in Kenya. 117 This is inconsistent with article 27 of
the Rome Statute. Section 18 of the Act confers universal jurisdiction to
the High Court of Kenya over any person responsible for international
crimes, provided that after commission the person is found in Kenya. One
wonders why Kenya did not use this provision to arrest President Omar Al
Bashir who visited Kenya on 27 August 2010. The Constitution of Kenya,
2010, recognises customary international law as part of the law of Kenya.
Article 2(5) of the Constitution of Kenya requires that the immunity of a
state official should not prevail over Kenya’s duty to prosecute arising from
any ratified treaty outlawing immunity. Hence, immunity cannot exist for
112 Arts 195 -198 Law 1/5 of 22 April 2009, amending the Penal Code of Burundi.
113 Arts 117 and 118 Constitution of Burundi, 2004.
114 Art 4 Implementation of the Rome Statute of the International Criminal Court Act 27
of 2002.
115 S v Johannes Velde van der Merwe, Adriaan Johannes Vlok, Christoffel Lodewikus Smith, Gert
Jacobus Louis Hosea and Hermanus Johannes van Staden Plea and Sentencing Agreement
in Terms of Section 105A of Act 51 of 1977 (as amended) 17 August 2007.
116 National Prosecution Authority Prosecution Policy 1 December 2005, Appendix A
‘Prosecution Policy and Directives Relating to the Prosecution of Offences Emanating
from Conflicts of the Past and Which were Committed on or before 11 May 1994’.
117 Sec 27 International Crimes Act, 2008; A Okuta ‘National legislation for prosecution of
international crimes in Kenya’ (2009) 7 Journal of International Criminal Justice 1063-
1076, 1073.