The implications of the emerging jurisprudence in international criminal law for penal regimes in post-independent Africa

• Jurisdiction: South Africa
• Pages: 193-219
• Author: Danwood Mzikenge Chirwa
• Date: 03 September 2019
• Published date: 03 September 2019
• Citation: (2004) 17 SACJ 193

The implications of the emerging

jurisprudence in international criminal

law for penal regimes in

post-independent Africa

DANWOOD MZIKENGE CHIRWA*

Abstract

The establishment of the ad hoc international criminal tribunals for the former

Yugoslavia and Rwanda in 1993 and 1994 respectively and the adoption of the Rome

Statute of the International Criminal Court in 1998 were heralded as landmarks in the

development of international criminal law. As has been the case with international law

generally, it is expected that the jurisprudence of these tribunals will influence the

development of domestic penal systems. However, for these tribunals to gain

credibility and achieve consistency, their operations and practices, especially those

relating to penalties, must be structured by human rights standards. It is argued that

African penal systems have a lot to learn from these tribunals regarding the range of

permissible penalties for international and ordinary crimes, objectives of punishment

and sentencing principles. However, it is contended that some of the principles

developed by these tribunals thus far are not consistent with human rights and may be

interpreted to justify harsh penalties, which are already applicable in some African

criminal justice systems.

Introduction

The last decade witnessed significant events in the history of international

criminal law. In 1993, the United Nations (UN) established the International

Criminal Tribunal for the Former Yugoslavia (ICTY) following reports of

widespread violations of international humanitarian law in the former

Yugoslavia. The International Criminal Tribunal for Rwanda (ICTR) was

created 18 months later in the wake of the genocide that had taken place in

Rwanda in 1994. The establishment of these ad hoc tribunals was followed

by the adoption of the long awaited Statute of the International Criminal

Court (ICC) on 17 July 1998, which became operational on 1 July 2002.

Although temporary in nature, both tribunals have been heralded as

landmarks in the enforcement of international human rights and humanitar-

*



LLM (UP), LLB Hons (UNIMA),

Lecturer in law, University of Cape Town.

193

(2004) 17 SACJ 193

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194

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SACJ •

(2004) 17

ian law.

1

Their jurisprudence and the ICC Statute have gone a long way

towards curing numerous inconsistencies and clarifying a host of obscurities

in international criminal law.

2

A notable area, which is afflicted with such

contradictions and lack of clarity, is that of penalties. Hitherto, the objectives

of international punishment were not known or clearly articulated. The range

of penalties to be imposed was vaguely ascertainable. The same was the case

with principles of sentencing.

This article analyses the jurisprudence of the ICTY and the ICTR and the

provisions of the ICC Statute relating to penalties and explores their

implications for penal regimes in Africa.

International criminal law is vitally important to African states. Firstly,

penal reform in Africa has attracted negligible attention of policy makers and

academics since independence. The received Penal Codes and other relevant

legislation on punishment continued to apply in most countries after

independence without amendments or modifications to place them in the

African context or at least to incorporate the changes that have occurred to

such legislation in England and other countries from where it originated.

3

It is

not surprising therefore that most penal regimes in independent Africa

remain harsh with a stronger emphasis on retribution and deterrence than on

individualisation of penalty and rehabilitation of the offender.

4

Worse still,

the tendency among African states has been to increase the severity of

penalties as a response to the public outcry against rising crime rates.

5

However, African constitutions adopted after 1989 have increasingly

entrenched bills of rights including fair trial rights. These provisions present

an opportunity for reconstructing penal practices and policies. In under-

taking such reform, international criminal law will serve as a useful guide

given the increasing influence international law has had on domestic legal

systems and the close connection between international human rights law

and international criminal law.

Secondly, a number of African countries are currently involved in transition

1

See P Akhavan 'The International Tribunal for Rwanda: The politics and pragmatics of

punishment' (1996) 90

American Journal of International Law

501.

2

See LS Sunga

The emerging system of international criminal law: Developments in

codification and implementation

(1997) 2-3.

3

See HF Morris 'A history of the adoption of criminal law and procedure in British Colonial

Africa, 1876-1935' (1974) 18(1)

Journal of African Law

6; JS Read 'Criminal law in the Africa

of today and tomorrow' (1963)

7(1) Journal of African Law

5.

4

S Coldham 'Criminal justice policies in Commonwealth Africa: Trends and prospects' (2000)

44(2)

Journal of African Law

218, 223.

5

Ibid 232; D Williams The Minimum Sentences Act, 1972, of Tanzania' (1974) 18(1)

Journal of

African Law

79.

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