Is the LSB petition against Khama an empty threat?
by Jerry Bungu
22.11.2009 9:32:06 P

The petition by the Law Society of Botswana (LSB) to President Ian Khama on extra-judicial killings may be an empty threat because Botswana is not a party to the ICC, some legal experts have argued.

Although Botswana signed and ratified the Rome Statute on 8 September 2000, it has not domesticated the Rome Statute. In a book published by the Institute of Security Studies (ISS) in 2008 entitled “No Justice, No Peace – unable or Unwilling: Case studies on domestic implementation of the ICC Statute in Selected Countries” , Botswana was one of the case studies of countries cited for failure to domesticate the ICC Statute.

The ISS book attributes Botswana’s failure in implementing the legislation to lack of expertise and capacity on the issue, a sense of proliferation of treaty obligations, together with the fact that ICC matters and the ability to respond or give assistance are not seen as matter of priority for the government.

A legal expert who did not want to be identified dismissed the petition by the LSB as just a threat because Botswana has not domesticated the ICC Statute.

“The legal validity of this petition is doubtful because Botswana is not party to ICC. The only legal route could be the ICC taking the case to the UN Security Council or the UN can take it as a referral case to the ICC as is the case with Sudan,” the legal expert explained.

The ISS says continued impunity of genocidaires or war criminals from formal processes of justice mocks the notions of a coherent, civilised and competent 21st century world system based on universal values.

In Africa, there have existed and continue to exist circumstances where even victims accept that the price of persuading some persons to agree to peace is that one agrees not to prosecute their past conduct.

However, the ISS suggests that should political consensus be obtained and relevant directive be given, Botswana is sufficiently well governed and its officials sufficiently skilled that implementation could be completed fairly rapidly and efficiently.

Botswana could take advantage of the election last year of former University of Botswana academic, Professor Daniel Nsereko to the ICC, giving the Court and the issue of implementation somewhat more local profile.

“Overall, therefore, the prospects of Botswana implementing a suitable national scheme in the next year or two maybe said to be ‘fair’ on a scale of (‘unlikely-low-fair-good-highly likely’), the ISS suggests. Botswana’s Attorney General’s Chambers reports that no prosecutions of international crimes have taken place in Botswana. In terms of international law, Botswana is a dualist system – ratified treaties create no actionable rights or obligations unless implemented through national laws.