Browsing by Author "Motilewa, Quadri Kafayat"

Most State-Parties to the Rome Statute are unaware of the proper process of making a referral to the international criminal court. Non-Party States are all together suspicious of the activities of the Court and as a result would not ratify the Rome Statute at all. As a result of the lack of the proper understanding of the processes involved in the making of a successful referral or the activation of the complementarity principle in favour of the default jurisdiction which lies in a State-Party; preliminary examinations and investigations take a long toll and expend a lot of time, money, energy and resources of all parties involved. The referral of a situation and the activation of the complementarity principle and all the criteria therein are not fully expatiated in the Rome Statute and as a result the bulk of interpretation is left to the Office of the Prosecutor. This research focused on the activities of the Office of the Prosecutor during the Pre-Trial Stages of countries that are in the preliminary examination phase and the investigation phase in order to observe the known and the hidden criteria expected of a State-Party and other stakeholders that are interested or invested in the outcome of a referral. It was discovered that any party making a referral had to determine whether the crimes committed were likely to be under the temporal, material and territorial jurisdiction of the court; whether the referral is likely to be admissible considering the complementarity and the gravity criteria; whether the referral is in the interests of justice and that the State involved was unwilling or unable to investigate and prosecute the crimes. Regarding the activation of the complementarity principle, which gives the default jurisdiction to the State-Party rather than the ICC; such a State-Party that wants to try its own cases should ensure that it has incorporated the Rome Statute into its National Laws in order to be seen as a ‘willing and able’ government interested in investigating and prosecuting crimes under the Rome Statute. Observing the above stated criteria and proper processes before making a referral guarantees making the work of the Office of the Prosecutor more efficient and helping to ensure a smoother and more effective international criminal justice system.

The court of law is the last hope of the common man and it is required that justice does not serve the purpose of the State alone but should be justice for the accused person; justice for the victim and finally justice for the society at large. In the adversarial system, the criminal procedure does not allow the judge to descend into the arena unlike in the case of inquisitorial system where the judge is expected to talk and also walk i.e. he must inquest into the evidence and physically investigate matters as presented before him. A well-rounded judge will better serve the interest of justice than a judge that is subjected to jurisdictional approach of adjudication rather an open approach inclusive of best practices. This study employed the use of doctrinal research methodology which will involve mostly a theoretical and pure legal point of view. This research discusses the concepts of law and justice according to the positivist and naturalist traditions and how it relates to the AdversariaYCommon Law System and the InquisitoriaYCivil Law System. The role of judges in criminal trials was compared looking at the Malaysian and the French Criminal Systems with the aim of proffering best practices. The study also looked into the history of the jury system and how well a Common Law judge can function without a jury. The study found that the following mechanisms if properly managed and utilized will be a good fusion of best practices in any given jurisdiction and these practices include; the application of judicial precedent; the re-enactment of the jury system or the use of 2 or more judges in the court of first instance; the merging of a civil and criminal matter that have the same parties disputing on the same matter in both instances; oral submissions for inquisitorial proceedings; the eradication of secret trials; upholding the tenets of natural justice; and a better attitude towards openness and integration for the betterment of justice.