The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries
Author: Jamil Ddamulira Mujuzi
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 77 – 106
Article 14(7) of the International Covenant on Civil and Political Rights (1966) provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. In human rights law, this is referred to as the right against double jeopardy (non bis in idem). The ICCPR has been ratified or acceded to by all African countries with the exception of Comoros and South Sudan. This implies, inter alia, that African countries must ensure that the right against double jeopardy is protected in their legislation. In this article, the author examines the constitutional provisions of all the African countries to analyse the extent to which they deal with the right against double jeopardy. The author also refers to legislation and case law from different African countries to demonstrate the circumstances in which a person who has been convicted or acquitted may be prosecuted again for the same offence (retrial) without violating their right against double jeopardy. The discussion shows, inter alia, that some of the constitutional provisions on the right against double jeopardy are contrary to art 14(7) of the ICCPR and some constitutions are silent on the right against double jeopardy. However, this loophole is rectified through subsidiary legislation or direct or indirect incorporation of art 14(7) in domestic legislation.