Institute for Security Studies
International Crime in Africa
Programme (ICAP)
CRIMINAL JUSTICE SYSTEMS IN SADC
AHSI
SEMINAR
Pretoria, South Africa 2009
Peter 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 and
administration of punishment and other sanctions”
Etannibi E.O.Alemika
Criminal Justice System may exist in three levels:
1. The National Level
2. Regional & sub-regional Level
3. International Level
The focus of the presentation will be on the national and
sub-regional level
National Criminal Justice System
POLICY AND
LEGISLATION
ENFORCEMENT
SENTENCING
JUDICIAL &
PROSECUTORIAL
PROCESS
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 Cooperation
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.
SARPCCO
An 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 due
process are part of the criminal justice system. When this fails it
may 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 Programme
pgitonga@issafrica.org
012 346 9500