Private Prosecution of Crimes under International Law as a means to Combat Impunity in some African Countries: The Likely Challenges

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 78-97
• Author: Mujuzi, J.D.
• Citation: (2017) African Yearbook on International Humanitarian Law 78

78

Private Prosecution Of Crimes Under

International Law as a means to

Combat Impunity in some African

Countries: The Likely Challenges

Jamil Ddamulira Mujuzi*

Abstract

Crimes under internat ional law, that is, war crimes, crimes aga inst humanity

and genocide, have been crim inalised in some A frican countr ies, such as,

Uganda, South Afric a, Mauritius, and Kenya through t he domestication

of the Rome Statute of the International Cr iminal Cour t. Courts in thes e

countries have jurisd iction, including univer sal jurisdict ion, over crimes

under international law. There are on-goin g attempts by public prosecutors

to prosecute war crime s in Uganda. In South Afr ica, the Constitutional

Court held that South A frican public prosecutors and the pol ice have a duty

to investigate allegations of cri mes against humanity com mitted outside

South Africa. A lthough private prosecutions for crimes under internationa l

law are possible in these countr ies, there is no known case in which a pr ivate

prosecution in Af rica has been instituted against a lleged war criminals. T he

purpose of thi s article is to demonstrate the challenges t hat may be faced in

the institution of private prosec utions in Uganda, Kenya, South Africa and

Mauritius against t hose who are alleged to have committed cr imes under

international law.

1 INT RODUCTION

Crimes under international law,1 that is, war crimes, crimes against

humanity and genocide, have been crim inalised in some Af rican

countries, such as, Uganda, South Afr ica, Mauritius, and Kenya

through the domestication of the Rome Statute of the International

* Professor of Law, Faculty of Law, University of the Western Cape and Co-Director,

South African-German Centre for Transnational Criminal Justice. The author

wrote this article when he was participating in the activities of the South African-

German Centre for Transnational Criminal Justice, Humboldt-Universität zu

Berlin in July 2017.

1 For a brief discussion of the differences between crimes under international law

and transnational crimes, see Florian Jeßberger ‘Piracy (Article 29F), Terrorism

(Article 28G) and Mercenarism (Article 28H)’ in Gerhard Werle and Moritz

Vormbaum (eds) The African Criminal Court: A commentary on the Malabo Protocol

(2017) pp 72-88. It is beyond the scope of this article to discuss transnational

crimes such as piracy, human trafcking, and terrorism.

(2017) African Yearbook on International Humanitarian Law 78

© Juta and Company (Pty) Ltd

PRIVATE PROSECUTION OF C RIMES UNDER I NTERNATIONAL LAW 79

Criminal Court.2 There is no dispute that national prosecutions of

crimes under international law are possible and that there i s evidence

that such prosecutions have taken place in some countries.3 A lthough

the International Crimina l Court has jurisd iction over international

crimes, ‘in practice the majority of tr ials for international crimes wil l

necessarily occu r at a national level’ this is because ‘[n]o international

tribunal wi ll ever have the resources to prosecute every alleged case of

an international crime, even presum ing it had jurisdiction’.4 Against

that background, the Kenyan Court of Appea l held in Attorney General

and 2 Others v Kenya Section of Intern ational Commission of Jurists:5

The legal system upon which the Rome Stat ute is anchored is on the premise

that the primar y competence and authority to initiate invest igations

of international cri mes and to prosecute them is with States Pa rties

national courts; that States Pa rties have the jurisd iction and the primar y

obligation to detect, investigate, prosecute a nd adjudicate the most serious

international cri mes, both under applicable international law a nd the

Rome Statute; and that the ICC will on ly investigate and prosecute when

national jurisdic tions are unable or unwil ling to do so genuinely. This is

the principle of complementarity re produced in the Preamble and A rticles

1 and Article 17 of the Statute. The pr inciple reects a reali zation that it is

preferable that such cri mes are investigated and prosecuted i n the country

where they occurre d. All States Parties are requi red to modify their national

law to meet this obligation.6

Courts in some Af rican countries have jurisdict ion over these

international crimes. There a re on-going attempts by public

prosecutors to prosecute war crimes in Uganda.7 In South A frica,

because of the reluctance of the public prosecutors to prosecute those

who had allegedly committed crimes again st humanity in Zimbabwe,

the Constitutional Court held that South A frican public prosecutors

and the police have a duty to investigate allegations of crimes against

humanity committed outside South Af rica.8 There is no known case in

2 Rome Statute of the International Criminal Court, 1998. In eKLR Walter Osapiri

Barasa v Cabinet Secretary Ministry of Interior And National Co-Ordination & 6 Others

[2014] 1 para 56, the High Court of Kenya observed that ‘[t]he enactment by

Parliament of the ICA, 2008, thus domesticates the Rome Statute giving it legal

‘teeth’ within the jurisdiction of Kenya.’.

3 M Cherif Bassiouni Introduction to International Criminal Law: Second Revised Edition

(2013) 944-946; Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth

Wilmshurst An Introduction to International Criminal Law and Procedure 2ed (2010)

64-69; Douglas Guilfoyle International Criminal Law (2016) 72-77.

4 Douglas Guilfoyle, International Criminal Law (2016) 72.

5 eKLR Attorney General & 2 Others v Kenya Section of International Commission of

Jurists [2018] 1.

6 Ibid at pg 4.

7 UGCC Thomas Kwoyelo alias Latoni V Uganda (Const. Pet. No 036 of

2011(reference)) [2011] 10 (22 September 2011).

8 CC National Commissioner of The South African Police Service v Southern African

Human Rights Litigation Centre and Another 2015 (1) SA 315 (CC); 2015 (1) SACR

255 (CC); 2014 (12) BCLR 1428 (CC).

© Juta and Company (Pty) Ltd