Institute for Security Studies

International Crime in Africa Programme (ICAP)

CRIMINAL JUSTICE SYSTEMS IN SADCCRIMINAL JUSTICE SYSTEMS IN SADC

AHSI AHSI

SEMINARSEMINAR

Pretoria, South Africa 2009Pretoria, South Africa 2009

Peter GitongaPeter Gitonga

CRIMINAL JUSTICE SYSTEMS IN SADCCRIMINAL JUSTICE SYSTEMS IN SADC

AHSI AHSI

SEMINARSEMINAR

Pretoria, South Africa 2009Pretoria, South Africa 2009

Peter GitongaPeter Gitonga

Introduction

Criminal Justice System may be defined as “referring to the norms,processes and decisions pertaining to the enforcement of criminal laws,the determination of guilt of crime suspects, and the allocation andadministration of punishment and other sanctions”Etannibi E.O.Alemika

Criminal Justice System may exist in three levels:1. The National Level2. Regional & sub-regional Level3. International Level

The focus of the presentation will be on the national andsub-regional level

National Criminal Justice System

SADC Legal Systems

Civil Law Common Law Hybrid (common & civil law)

Angola Botswana Mauritius

DRC Lesotho Seychelles

Madagascar Malawi

Mozambique Namibia

South Africa

Swaziland

Tanzania

Zambia

Zimbabwe

Customary law is practiced across the countries. Some of the common law systems are influenced by Roman-Dutch and English common law.

Role of SADC in CJ

SADC plays a role in influencing the criminal justice systems of the sub

region in various ways which include:• Standard setting: development of model laws & Protocols for

cooperation and assistance; setting principles in the SADC Treaty that promote good governance and rule of law.

• Adjudication of Disputes: between Member States and Legal and natural persons through the Tribunal. By adjudicating over HR the Tribunal decisions impacts on the CJ at the national level.

• Capacity Building in cooperation with organizations.

Setting Standards

• The SADC Treaty provides for basic principles to which members are to adhere to such as the rule of law, democracy and human rights. This may include the right to a fair trial, humane conditions in prisons, and due process in CJ.

• Through the Protocols under the SADC Treaty, SADC promotes a common approach and fosters joint initiatives towards addressing common problems such as organized crime & money-laundering that have cross-border effect. (trans-national crimes)

• SADC provides a framework for the development of programmes to build capacity of Member States as well as ensure compliance with international norms.

SADC Protocols on CJ

Protocol Entry into Force

Declaration and Treaty of SADC 30 September 1993

Protocol Against Corruption 6 July 2005

Protocol on Combating Illicit Drugs 20 March 1999

Protocol on Extradition 18 August 2006

Protocol on Control of Firearms, Ammunition & other related Materials

8 November 2006

Protocol on Immunities and Privileges 30 September

Protocol on Legal Affairs Not in Force

Protocol on MLA in Criminal Matters Not in Force

Protocol on Politics, Defense and Security Co-operation

3 March 2004

Protocol on Tribunal and rules of Procedure 14 August 2001

Adjudication of Disputes• The SADC Tribunal is established by the SADC Treaty and the SADC

Protocol establishing the Tribunal.

• The Tribunal has jurisdiction to ensure proper interpretation of the provisions of the Treaty, Protocols there under and subsidiary instruments, such as the Protocol on Mutual Legal Assistance.

• Scope of jurisdiction extends over, adjudicating between Member States and natural or legal persons of Member States.

• There is a requirement of exhaustion of local remedies. This gives the Member States opportunity to build their capacity.

Contd..

• No criminal jurisdiction as yet however the court can handle human rights issues which have direct bearing on CJ.

• Protocol on the Tribunal gives powers to Tribunal to develop community jurisprudence, having regard to international law. (art 21(b) of SADC Protocol on Tribunal)

• Tribunal may make reference to other treaties, and international instruments that a Member State is a party to.

Capacity Building

SADC has undertaken regional initiatives in the area of

combating crime. Such initiatives include:

• SADC-Drug Control Programme

• Co-operation and support to the Southern Africa Regional Police Chiefs co-operation Organization (SARPCCO)

SADC-Drug Control Programme• The programme was developed by the SADC-Secretariat and is

based on the recommendations made in the Protocol on combating illegal drugs (SRDCP)

• The programme is aimed at providing intervention in:– building regional and national capacity

– Legal development which includes harmonization of national laws.

– Establishment of SADC Epidemiological Network on Drug Use (SENDU). Compiles drug-related data. Indications are that it is lacking in funding.

– Creation of a SADC Drug Control Database, which provides information on the drug situation in different countries.

SARPCCOAn International independent Police Org in Southern Africa, whose

membership consists of Police Chiefs of the Sub-region.• Interpol offices used as their liaison offices.

• Co-operation between Member States guided by multi-lateral agreement on co-operation on combating crime within the region.

• Promotes, strengthens and perpetuates regional co-operation.

• Prepares and disseminates relevant info on criminal activities.

• Makes recommendations on harmonization of legislation & accession and ratification of International conventions.

• All SADC countries are members except Madagascar and Seychelles.

SADC & International Criminal Justice

• SADC played an important role in negotiations of the Rome Statute to establish the International Criminal Court.

• The Rome Statute provides the framework in which genocide, crimes against humanity and war crimes may be prosecuted.

• Angola, Mozambique, Swaziland and Zimbabwe have not ratified Rome Statute. Only South Africa has domesticated the Statute.

• Article 4(h) of CA of AU is applicable to all SADC members. Article 4(h) allows the AU to intervene in respect of grave circumstances, namely; war crimes, genocide & crimes against humanity.

Challenges and Capacity Gaps

• Various challenges and capacity gaps can be identified including:– Lack of ratification and domestication of key legislation that

deal with combating crime.– Inadequate funds and resources (national and sub-regional)– Inadequate technical expertise ( especially dealing with

organized crime)– Lack of Independent Institutions (Judiciary) – Insufficient awareness about the legislation and policies at

the national level.– Lack of political will.

Contd….

– The different legal systems in the region makes it difficult to harmonize the laws as well as ensure effective cooperation and free movement of legal expertise within the region.

– Variation in definitions of crimes and imposition of penalties.

– Some SADC countries are also members of other RECs, which puts a strain on their resources.

– Differences in the capacity & development of the Member States.

– Lack of proper follow up and implementation of agreements and treaties.

– Poor enforcement mechanism on SADC Tribunal decisions.

Consequences of a failed criminal justice system

It is the responsibility of State to ensure the rule of law and dueprocess are part of the criminal justice system. When this fails itmay lead to:

• The disregard for the rule of law• Impunity gaps both at the national and regional level• Human rights violations• High Crime rate• Lack of confidence by citizens of the Justice System• Leads to low foreign investment and economic growth

Role played by CSO/NGOs in CJ

• CSO/NGOs continue to play a critical role in CJ within Africa and SADC. Such roles include:

1. Advocacy: Such as the campaign to have States ratify, domesticate, implement the Rome Statute to ensure an end to impunity.

2. Capacity Building: Through trainings and seminars, especially to key departments in the CJ such as the prosecutorial department. Training to paralegals to assist in access to justice by citizens.

3. Technical expertise: An example is a manual developed through SARPCCO and ISS on CT.

4. Legal Aid: Through the provision of pro bono legal assistance.

5. Public interest litigation: Cases of HR Violations could be taken to court to build up Jurisprudence.

Recommendations• Ratification & domestication by Member States of key SADC

Protocols, Regional & International instruments on CJ. (key Government departments at the national level could urge their Governments to take steps towards this)

• Member States to commit adequate funds & resources towards SADC and its CJ initiatives.

• Further engagement is needed between SADC and organizations that offer technical expertise .E.g. UNODC & other CSOs

• SADC should engage with CSO/NGOs, regional & sub-regional bodies/organs in formulating and drafting policies and legislation.

• Member States should take decisive action such as sanctions to ensure compliance to decisions of the SADC Tribunal, as well as ensure compliance to international legal obligations.

Contd..• Steps should be taken towards harmonizing the legal systems of

Member States to ensure effective co-operation in CJ & to promote free movement of expertise in the region.

• Member States should take steps to ensure their national laws conform to International Standards and the Protocols they have ratified to bring about effective implementation at the national level. (National CSOs and key Government departments could play an advocacy role in this regard)

• Awareness needs to be raised among the policy implementers at the national level on effective application & interpretation of the Protocols.( CSO could play a role.)

• Development of legislation to deal with ‘uncovered crimes’ such as terrorism. Any gap will hamper efforts to jointly combat crime.

Institute for Security Studies

International Crime in Africa Programme (ICAP)

Thank you Peter Gitonga

International Crime in Africa Programmepgitonga@issafrica.org

012 346 9500