Abstract

This contribution sets out to determine whether the degree of organisation that a non-state fighting unit has to meet to be classified as an organised armed group under art 8(2)( f) of the Rome Statute is similar to the requirements set out in art 1(1) of Additional Protocol II. The construct ‘protracted armed conflict’ was for the first time introduced in art 8(2)( f ) of the Rome Statute. Article 8(2)( f ) of the Rome Statute delineates the type of conflict in which the war crimes listed under art 8(2)(e) of the Rome Statute may be committed. The meaning attached to ‘protracted armed conflict’ as introduced by art 8(2)( f ) of the Rome Statute is obscure in that its application differs from the traditional definition of non-international armed conflict. However, in defining the nature of the conflict under art 8(2)( f ), the term ‘organised armed group’, first codified in art 1(1) of Additional Protocol II, is used. Furthermore, the war crimes listed in art 8(2)(e) are founded on the description of violations of the rules of international humanitarian law in Additional Protocol II. In these circumstances, it is possible under art 8(2)( f ) that an organised armed group must meet the organisational criteria required by art 1(1) of Additional Protocol II. On the other hand, the construct ‘protracted armed conflict’ may create an entirely new category of organised armed groups unique to art 8(2)( f ) of the Rome Statute. The most straightforward explanation is that the organisational criteria under art 8(2)( f ) simply are similar to the requirements under art 8(2)(d) of the Rome Statute.

As reflected in the Ntaganda Decision of Trial Chamber VI of the International Criminal Court on 8 July 2019, conflict classification is crucial to war crime adjudication as a nexus is required between war crimes and the arena in which they are committed. An initial step the International Criminal Court undertakes in prosecuting war crimes is to determine whether or not an armed conflict existed at the time the alleged crime was committed and to classify that conflict. As confirmed by the 2018 War Report, the majority of armed conflicts are non-international in nature, and violations of international humanitarian law constituting war crimes in all probability are most likely to occur in this context. As recorded, the majority of investigations into war crimes as well as current cases relating to the alleged commission of war crimes adjudicated by the ICC occurred in the context of non-international armed conflict. Many of the crimes being investigated or tried are included in the listing in art 8(2)(e) and, therefore, transpire in art 8(2)( f )-type armed conflicts. It is important to gain certainty as to the organisational threshold requirement to be satisfied in establishing whether there is a ‘protracted armed conflict’ under art 8(2)( f) of the Rome Statute. The author offers preliminary conclusions in relation to the conundrum by interrogating the traditional sources of international law.

Abstract

The influence of bias in forensic expert opinion can create problems for the criminal justice system. Many research studies have shown that forensic experts can be susceptible to cognitive bias that influences their memory and reasoning and affects the objectivity of their opinion and decisions. This has contributed to the misidentifications and consequent wrongful convictions of innocent persons. This article examines bias that can affect the opinion offered by forensic experts in criminal trials and discusses the risk of bias in some forensic science disciplines, such as fingerprint examination, trace evidence, bullet comparison and DNA analysis. The article contends that different factors such as the quality and/or clarity of the forensic evidence, contextual case information and subjective interpretation of forensic analysis can exacerbate bias. Strategies recommended for mitigating bias include blind testing, blind verification, independent review, linear sequential unmasking (LSU) and the filler control method. The merits and demerits of these strategies are highlighted. The article also proposes certain cross-examination questions that could expose bias in forensic examination.

Abstract

The administration of an oath, affirmation or admonishment is generally regarded as an indispensable marker of witness reliability in common law jurisdictions. As a result of colonisation, the same approach is entrenched in the South African legal system. This article examines the rule in its postcolonial context, its application, its rationale and its utility in furthering the truth-seeking function of the courts. It concludes with recommendations for law reform.

Abstract

Botswana’s sentencing regime has seen few changes since independence. Fifty years hence, some areas of sentencing appear to be out of step with international human rights standards. In particular, Botswana retains the death penalty and judicial corporal punishment, both of which have been abolished by many states world-wide, including several southern African countries. Nevertheless, Botswana remains firmly in favour of these penalties. Botswana has increasingly been using mandatory minimum sentences as penalties for certain offences. Some legal commentators and judges view mandatory sentencing as an unjustifiable usurping of judicial discretion. In response to the perceived loss of discretion, judicial officers have sometimes circumvented mandatory minima in sentencing. From the perspective of legislators however, mandatory sentences are seen as a crimecontrol tool and an effective method to achieve uniformity in sentencing. This article considers the continued utility of the death penalty and judicial corporal punishment and mandatory sentencing is discussed and possible alternatives to these sentences are proposed. The possible promulgation of a Sentencing Commission for Botswana is also considered. The article presents an assessment of these issues in sentencing law and practice and makes proposals for law reform.

Abstract

This article critiques the traditional purposes of sentencing found in Namibian law, as developed through the courts: retribution, deterrence, incapacitation and rehabilitation. The article proposes that more developed sentencing purposes be legislatively prescribed. Sentencing purposes are to be distinguished from the three principles of sentencing whereby courts are required to consider the crime, the offender and the interests of society. This is the so-called triad of Zinn. The article offers reform proposals to overcome its finding that the triad of Zinn is too basic, legally vague and insufficiently rigorous, as well as to ensure that sentencing principles are more responsive to victims of crime. The article also critiques the Supreme Court’s decisions on the unconstitutionality of life sentences and mandatory minimum sentences and assesses the impact of these decisions on sentencing practices in Namibia. The article concludes by evaluating potential legislative and policy reforms to address the issue of inconsistent approaches to sentencing in Namibia.

Abstract

Botswana’s sentencing regime has seen few changes since independence. Fifty years hence, some areas of sentencing appear to be out of step with international human rights standards. In particular, Botswana retains the death penalty and judicial corporal punishment, both of which have been abolished by many states world-wide, including several southern African countries. Nevertheless, Botswana remains firmly in favour of these penalties. Botswana has increasingly been using mandatory minimum sentences as penalties for certain offences. Some legal commentators and judges view mandatory sentencing as an unjustifiable usurping of judicial discretion. In response to the perceived loss of discretion, judicial officers have sometimes circumvented mandatory minima in sentencing. From the perspective of legislators however, mandatory sentences are seen as a crimecontrol tool and an effective method to achieve uniformity in sentencing. This article considers the continued utility of the death penalty and judicial corporal punishment and mandatory sentencing is discussed and possible alternatives to these sentences are proposed. The possible promulgation of a Sentencing Commission for Botswana is also considered. The article presents an assessment of these issues in sentencing law and practice and makes proposals for law reform.

Abstract

Zambia faces numerous problems relating to sentencing, including unwarranted sentencing disparities and an unmanageable prison population attributable to, among other factors, a failure to make sufficient use of non-custodial sentences. One consequence of Zambia’s history as a former British protectorate is that its Constitution requires Zambia to borrow from English law and practice in matters that are not covered by Zambian law. The article highlights the shortcomings in Zambia’s sentencing system and recommends that Zambian sentencers adopt and adapt the English and Welsh sentencing guidelines to help address the problems currently faced by sentencers in this jurisdiction. Sentencing guidelines are fast becoming a staple feature of sentencing systems worldwide including several African jurisdictions. They are proving to be a useful device for not only restraining unwarranted sentencing disparities, but also incorporating non-custodial sentences into a sentencing system as one of several measures of ensuring the efficient use of penal resources. The English and Welsh sentencing guidelines have proved to be particularly influential in the development of guidelines across the world, including on the African continent.

Abstract

This commentary explores the sentencing regime in Tanzania, beginning with pre-colonial arrangements that focused on practices now described as ‘restorative’ forms of justice. A leading case is discussed to show how disputes were resolved in pre-colonial Tanzania. The article then turns to examine the contemporary sentencing regime. The Court of Appeal is the highest judicial body in Tanzania. Their decisions are followed and binding on all courts below it. More recently, statutory authority over judicial discretion has undermined the ability of the judiciary to individualise sentencing. Current judicial pronouncements on sentencing are scattered and there is an absence of guidelines to assist judges and users of the court system. After discussing the objectives of sentencing in Tanzania, and the principal sanctions, the author offers some commentary on the direction of necessary reforms in this jurisdiction. The commentary further notes the absence of comprehensive and coherent guidelines to assist the courts in making an informed choice at sentencing. Sentencing guidelines set the initial benchmark and help courts to achieve uniformity and consistency in sentencing. As other contributions to this special issue of the journal demonstrate, several African jurisdictions have adopted guidelines, thereby providing Tanzania with working models for potential reforms.