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

56 Chapter 2
any state official charged with international crimes recognised under the
Rome Statute or under the International Crimes Act.
In Burkina Faso there is a law implementing the Rome Statute,
thereby conferring jurisdiction to courts of Burkina Faso over international
crimes. 118 Articles 16, 17, 18 and 19 of the law prohibit and punish
genocide, crimes against humanity and war crimes as defined in the Rome
Statute. Immunity of state officials in respect of these crimes is outlawed in
article 7 compatible with article 27 of the Rome Statute. Additionally,
article 39 requires that all persons arrested should be transferred to the ICC
without distinction as to their official capacity. The law is very strongly
against immunity of state officials and is therefore commendable.
In Niger, the Penal Code 61-27 of 15 July 1961 was amended in 2003
by Law 2003-025 of 13 June 2003 to introduce breaches of international
humanitarian law. These include crimes against humanity, genocide and
war crimes. 119 This law punishes genocide and crimes against humanity
with the death sentence. War crimes may be punished by the death
sentence or life imprisonment, depending on the number of persons killed.
Immunity is outlawed in article 208.7. Further, the law empowers courts
in Niger to punish these international crimes on the basis of universal
jurisdiction, regardless of where the crime was committed or the
nationality of the victims.
Uganda, which is a state party to the Rome Statute, enacted the
International Criminal Court Act, 2010. 120 The Act was assented to by the
President on 25 May 2010 and came into effect on 26 June 2010. The Act
incorporates the Rome Statute into Ugandan law and gives effect to the
Rome Statute. 121 It confers universal jurisdiction to Ugandan courts over
international crimes recognised in the Rome Statute. 122 Such crimes
include genocide, war crimes and crimes against humanity. These crimes
are defined under sections 7, 8 and 9 of the Act in the same way as in the
Rome Statute. Immunity of state officials is outlawed under section 25(1)
and (2) of the Act in respect of the crimes within the ICC jurisdiction.
However, one must also note the immunity provisions under article 98(5)
of the Constitution of Uganda, 1995. Although immunity could be granted
to the President under the Constitution, it is clear that the inconsistency
between article 98(5) of the Constitution and sections 25(1) and (2) of the
International Criminal Court Act, 2010, may be resolved by section 24(6)
118 Law 052-2009/AN of 31 December 2009 relating to the Determination of the
Competence and Procedure in Implementing the Rome Statute of the International
Criminal Court by Courts of Burkina Faso, Decree 2009-894/PRES 31 December
2009.
119 Arts 208.1, 208.2, 208.3 of Law 2003- 025 of 2003 amending the Penal Code of Niger,
Law 61-27 of 15 July 1961.
120 International Criminal Court Act 11 of 2010 (Uganda).
121 Sec 2.
122 Secs 17 and 18.