29 June 2009
Maputo — Nine years have passed since Mozambique signed the Rome Statute setting up the International Criminal Court, yet the country has still not ratified this treaty, the chairperson of the Mozambique Bar Association (OAM), Gilberto Correia, noted in Maputo on Monday.
Speaking at the start of a two day conference on the ICC and "Prospects for International Criminal Justice in Mozambique", Correia pointed out that "more than enough time has passed to organise the ratification. But no public explanation has been given, by either the government or parliament, for not ratifying it".
Ten of the fifteen member states of the Southern African Development Community (SADC) have ratified the statute. Mozambique finds itself alongside Zimbabwe, Swaziland, Angola and Seychelles in the group that has not ratified.
"Why does the Mozambican state hesitate?", asked Correia. "We would be in better company among the group of SADC members who have ratified".
He stressed that the ICC is an independent and permanent body within the UN system, set up to end the impunity which the perpetrators of crimes against humanity had hitherto enjoyed, and to try and prevent such crimes from recurring in the future.
Sylvia Steiner, a Brazilian judge on the ICC, pointed out that the court is "a complementary system of justice", which only moves into action in cases where the national judiciary of the state involved is unwilling or unable to prosecute. This made it quite unlike the exceptional courts set up to deal with the genocide in Rwanda and war crimes in the former Yugoslavia, which override national systems.
The ICC could operate on the territory of states that have ratified the Rome Statute: but it could not move against crimes committed in countries that are not parties to the treaty without a resolution from the UN Security Council. This, she said, was why the ICC could not intervene against human rights abuses in Zimbabwe.
A major problem, Steiner said, was that even among countries that have ratified the Statute, many have not passed legislation typifying the crimes it deals with as part of their own domestic legal order.
The President of the SADC Lawyers' Association, Mabvuto Hara, rejected claims that the ICC was a "western imposition" on Africa. He pointed out that SADC member states had been present and active right from the start. Before the Statute was first discussed in 1998, SADC experts had produced a set of principles, which the region's justice ministers and Attorney-Generals had agreed, and which were then mostly adapted at Rome, and form part of the Statute.
"We were present from the beginning, and we were involved in determining its content", Hara said. "We own this. It would be hypocritical and absurd for us to dismiss the ICC as an imposition".
Those who complain that the ICC "targets Africa", he added, "should say they intend to deal with impunity in Africa".
Two judges on Mozambique's Constitutional Council, the country's highest body in matters of constitutional law, suggested that the Mozambican constitution may need amending before the Rome Statute can be ratified. Teodato Hunguana argued that the Constitution makes prosecutions the exclusive preserve of Mozambican courts, and an amendment was needed to renounce part of that judicial sovereignty.
He thought this was a matter of urgency, but could be dealt with soon, since the period in which the 2004 Constitution cannot be substantially amended will run out in January.
The Council's chairperson, Luis Mondlane, raised other constitutional difficulties. The Mozambican constitution, for instance, bans the penalty of life imprisonment, and the Criminal Procedural Code imposes a statute of limitations even for the most serious of crimes. The ICC, however, can pass life sentences and there is no time limit, except that cases prior to the Statute taking effect (February 2002) cannot be heard.
Steiner doubted the need to change the Constitution. There was no need to renounce any sovereignty, she argued, since the ICC did not deprive a country of any sovereignty, and will only act in cases where the local courts cannot or will not.
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