Malawi government has been advised not to break ties with the International Criminal Court (ICC) saying the country should maintain recognising its jurisdiction.
A proposal by Kenya pushing for a pullout from the ICC has been backed by African leaders, repeating claims it unfairly targets the continent.
Chad’s President Idriss Deby, elected African Union chairman at the two-day summit last week, criticised the court for focusing its efforts on African leaders.
Malawi was represented at the summit by Foreign Affairs Minister George Chaponda, who is yet to comment on the government stand.
But Centre for Human Rights and Rehabilitation (CHRR) and a renowned legal expert, Edge Kanyongolo, have advised government to follow the country’s interests and avoid being used in the process of making any decision
The decision to leave the ICC’s founding Rome Statute is up to an individual nation.
CHRR advocacy coordinator Makhumbo Munthali argues that Malawi should stick with ICC.
“I strongly hold that the need to have an African Court with criminal jurisdiction is not a new idea as empirical evidence supports the view that Africa was pregnant of application of international criminal justice on the continent in order to curb serious crimes of international criminal law and end impunity of such. However, it is important to note that the creation of ICC does not mean that Africa cannot have another court with criminal jurisdiction to complement the efforts of ICC both at national and international level. As long as such a court is created not as a safe haven of shielding certain individuals from investigation and prosecution under the guise of immunity, but rather recognises the fact that immunity from serious crimes of international concern such as crimes against humanity and genocide has no place under both treaty and customary international law,” Munthali told Polical Index in The Nation.
Munthali commended government for signing and ratifying the Rome Statute of ICC on March 3 1999 and September 19 2002, respectively.
However, he said Malawi should take a step further by living up to its constitutional obligations and domesticating the statute to enable the domestic legal framework to investigate and prosecute serious international crimes such as crimes against humanity, genocide, war crimes and the crime of aggression.
“This takes into consideration the fact that Rome Statute system builds on the principle that the primary responsibility for investigating and prosecuting atrocity crimes lies with the State as the ICC would only step in in rare cases where the State is unwilling or unable to genuinely carry out the investigation or prosecution. Besides, the Malawi Constitution provides for domestication of international instruments which the country is party to,” he said.
University of Malawi law professor Edge Kanyongolo argues that leaving the ICC with no credible mechanism for justice for mass crimes in sight would be an error of colossal proportions and that Malawi should advocate reforms, rather than bolting.
“We should be guided by our national interests. We should not be used by other countries or politicians from other countries for their own interests,” Kanyongolo said.
The AU, led in particular by Kenya, has accused the court of unfairly targeting Africans for prosecution as the majority of its cases come from the continent.
This included a failed case to try Kenyan President Uhuru Kenyatta and a faltering case against his deputy William Ruto, for allegedly masterminding deadly post-election violence in the east African country in 2007-2008 in which some 1,200 people died.Follow and Subscribe Nyasa TV :