Immunity and the Implementing Legislation of South Africa, Kenya and Uganda

Abstract

This contribution will consider the issue of immunity under the Rome Statute in light of the Rome Statute implementation legislation adopted by South Africa, Kenya and Uganda. In doing so it will consider the relevance of immunity in relation to both cooperation in arrest and surrender, and domestic prosecutions under these legal instruments. The primary aim here is to catalogue and analyze how South Africa, Kenya and Uganda have chosen to give effect to their obligations – both general and specific – under the Rome Statute as they relate to immunities. However, in so doing it will also reveal what these state see as the proper construction of immunity under the Rome Statute – and specifically the relationship between article 27(2) and article 98(1) – by the manner in which they formulate their domestic cooperation regimes. Although it is strictly speaking up to the Court to formulate its construction of the immunity question (something which it has failed to do yet) and the practice of states is not a formal consideration in this process, these provisions might well have some indirect effect on how this relationship is constructed. If only to question the dominant construction of the Rome Statute’s immunity provisions by academics, who themselves have relied on state practice in support of their position. In a more direct respect, how African states address the immunity question (both in terms of cooperation and prosecution) will likely influence other states in region incorporate their obligations under the Rome Statute through implementing legislation and other domestic legal measures.