Current International and Transnational Criminal Law in Africa – Practice, Challenges and Prospects. Report on the Conference of the African-German Research Network for Transnational Criminal Justice

Leon Trampe

doi:10.37284/eajle.6.1.1608

Leon Trampe African-German Research Network for Transnational Criminal Justice

DOI: https://doi.org/10.37284/eajle.6.1.1608

Keywords: International Criminal Law, International Criminal Court, Transnational Criminal Law, Law in Africa, Legal Implementation of Crimes, Criminal Prosecution, Legal Policy

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Abstract

The African-German Research Network for Transnational Criminal Justice conducted its an-nual conference on 30th and 31st October and on 4th December 2020 online. The theme of the conference was “Current International and Transnational Criminal Law in Africa: Prac-tice, Challenges and Prospects”. The report gives a concise overview of the excellent paper abstracts and presentations of the conference, ranging from concepts of restorative justice and the implementation of international and national criminal offences to legal policy responses and prosecutions in Malawi, Nigeria, South Africa and Uganda and by the ICC. Several con-ference papers have been published in peer-reviewed law journals and a number of the pro-posals discussed have been partially implemented by national legislators

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References

For conference reports of the Centre see Vesper-Gräske, Tagungsbericht: 5. Summer School des South African-German Centre for Transnational Criminal Justice, ZIS 2013, 401; Vesper-Gräske, Conference Report: “Africa and the International Criminal Court” by the South African-German Centre for Transnational Criminal Justice, ZIS 2014, 145; Materu/Mninde-Silungwe/Tessema, Report on the 6th Summer School of the South African-German Centre for Transnational Criminal Justice, ZIS 2014, 660; Adem/Yankson, The African Criminal Court: Promoting or Undermining the Prosecution of International Crimes in Africa?, ZIS 2015, 567; Altunjan/Filbert/Ojo, Current Debates in International Criminal Justice, ZIS 2019, 282.

For more details to the Centre and the project please visit our webpage: http://www.transcrim.org/.

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For an overview on human trafficking in Sub-Saharan Africa, see UNODC, Global Report on Trafficking in Persons 2022 – Sub-Saharan Africa and, Trafficking in Persons Report July 2022.

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For the ninth consecutive year, the government of South Africa did not promulgate implementing regulations for the 2013 Prevention and Combating of Trafficking in Persons (PACOTIP) Act’s immigration provisions, resulting in foreign victims unable to access immigration remedies, see Department of State of the USA, Trafficking in Persons Report 2022 – South Africa.

Reports indicate widespread corruption, be it that lower-level officials warned traffickers against prosecution in exchange for bribes, that immigration officials facilitated illegal entry for traffickers at the borders or returned survivors to traffickers instead of referring them to a care facility, or that officials were unwilling to investigate cases, see Department of State of the USA, Trafficking in Persons Report 2022 – South Africa and Malawi.

Such trafficking may also not fall within the definition of slavery as a crime against humanity (Art. 7 II lit. c), especially given the State policy threshold, see Moran, The Age of Human Rights Journal (AHRJ) 3 2014, pp. 32 ff. For an inclusion of human trafficking as a new core crime in the Rome Statute, see PGA, Modernising the International Criminal Court: Crimes against the Environment, Trafficking in Human Beings, Hybrid Justice and Corporate Accountability 2022, pp. 46 ff.

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Cf. Nanjunya/Nortje, Justice Delayed but not Denied: The Prosecution of Thomas Kwoyelo for International Crimes in Uganda, PER/PELJ 2023, p. 5; https://www.ijmonitor.org/2018/10/thomas-kwoyelo-in-uganda-victims-participation-brings-hope-and-challenges/ (last accessed October 2023).

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The article will be published in South African Journal of Criminal Justice.

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Cf. Filbert, The Plaintiffs v. Attorney General and Uganda Veterans Development Ltd: A Critique, EALR 2022, pp. 128 ff.

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https://www.state.gov/reports/2023-trafficking-in-persons-report/uganda/ (last accessed October 2023).

See exemplary on the basis of a concrete decision Filbert, The Plaintiffs v. Attorney General and Uganda Veterans Development Ltd: A Critique, EALR 2022, pp. 132 ff.

For an examination of human trafficking in Tanzania in the light of international law, see Filbert Kahimba, Human Trafficking Under International and Tanzanian Law, 2021.

This legislation is available at the official website of Uganda's Ministry of Information and Communications Technology and National Guidance at https://ict.go.ug/wp-content/uploads/2019/03/Data-Protection-and-Privacy-Act-2019.pdf (last accessed October 2023).

Cf. Cf. Matsiko, United States Visa Applications, Global Magnisky Act & Social Media Monitoring in Uganda, 2019 https://www.digiface.org/united-states-visa-applications-global-magnisky-act-social-media-montioring-in-uganda/ (last accessed October 2023); Matsiko, United States Foreign Policy, Global Magnisky Act & Social Media Monitoring in Uganda, 2019 ¬-https://www.african-excellence.de/author/samuel-matsiko/ (last accessed October 2023).

The Statutory Instrument Supplement to The Uganda Gazette No. 21, Volume CXIV, dated 12 March, 2021 reduces the problems, but does not eliminate them. It only provides for the introduction of a data protection officer (Part X) and a complaints and investigation mechanism (Part IX).

The Statutory Instrument Supplement deals only cursorily with data collection and processing (Part III) as well as data correction and processing (Part VI), the data protection register (Part IV), the registration of data collectors, data processors and data controllers (Part V), and the data security in general (Part VII).

The supplement does not address the accountability of the Personal Data Protection Office (Part II). The rights of data subjects are only dealt with superficially in Part VIII.

Cf. Kahombo, The African Union and the Development of African International Criminal Law, 2017, pp. 16 ff., 305 ff., 345 ff., 392 ff.

Cf. Ambos, ‘Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’, in: Werle/Vormbaum (eds), The African Criminal Court: A Commentary on the Malabo Protocol, 2017, pp. 45 ff.

In July 2023 the Central African Republic became the 15th member state of the African Union to ratify the Protocol to the Constitutive Act of the AU on the Pan-African Parliament, also known as the Malabo Protocol, see https://pap.au.int/en/news/press-releases/2023-07-19/central-african-republic-ratifies-malabo-protocol (last accessed October 2023). It must be ratified by at least 28 countries before it can enter into force.

The impunity is maintained when the ICC Prosecutor is too inactive in parallel, see for example the ICC’s situation in Nigeria Ngachi, Two years too long – Time for the ICC Prosecutor to open a formal investigation in Nigeria, 2022 https://hrij.amnesty.nl/two-years-too-long-time-for-the-icc-prosecutor-to-open-a-formal-investigation-in-nigeria/ (last accessed October 2023).

Cf. Kahombo, The African Union and the Development of African International Criminal Law, 2017, pp. 14 ff., 165 ff.

Cf. Open Society Justice Initiative, Briefing Paper – Witness Interference in Cases before the International Criminal Court, 2016, pp. 3 f. that has examined all ICC cases since the first trial in 2009 until July 2016.

Cf. De Brouwer, The Problem of Witness Interference before International Criminal Tribunals, ICLR 2015, pp. 720 ff.

In addition, the prohibition of offences in Art. 70 of the Rome Statute protects the administration of justice against inappropriate witness behaviour and can thus indirectly also serve to protect the accused.