The International Criminal Court (ICC) says it is considering issues raised in a petition by civil society organisations (CSOs) imploring it to come to Malawi and investigate and possibly prosecute senior government officials who failed to prevent the killing of 20 demonstrators on July 20 2011.
A letter dated June 26 2012, signed by head of the Information and Evidence Unit in the Office of the Prosecutor, Mark P. Dillon, says the court will report back to the petitioners on the next course of action on the issues raised.
Dillon says he acknowledged the petition on behalf of the courtâ€™s prosecutor and gave an update on what the ICC was doing to remove the perception that it was sitting on the petition.
â€œThe office is analysing the situation identified in your communication, with the assistance of other related communications and other available information,â€ says Dillon.
â€œUnder Article 53 of the Rome Statute, the prosecutor must consider whether there is a reasonable basis to believe that crimes within the jurisdiction of the court have been committed, the gravity of the crimes, whether national systems are investigating and prosecuting the relevant crimes, and the interests of justice,â€ he adds.
Dillon says although the analysis of the issues would be carried out as expeditiously as possible, it was important to note that meaningful analysis of such factors could take some time.
â€œAs soon as a decision is taken on whether there is a reasonable basis to proceed with an investigation, we will advise you promptly and we will provide reasons for the decision,â€ says Dillon.
The CSOs, who organised the July 20 mass demonstrations, wanted the ICC in the Hague, The Netherlands, to investigate former president Bingu wa Mutharika, former Minister of Home Affairs and Internal Security Aaron Sangala and ex-Inspector General of Police Peter Mukhito.
The petitioners appealed to the court to prosecute the three for crimes against humanity in connection with the death of 20 civilians and seriously wounding hundreds of unarmed people during the nationwide demonstration.
â€œWe strongly submit that the arbitrary killing of the 20 unarmed demonstrators at the hands of the police is an indication of the unacceptable failure and negligence in our police system in their duty to safeguard the lives of Malawians as enshrined in the Malawi Constitution,â€ reads the petition.
It says according to article 7 (1) of the Rome Statute of the ICC, the killings, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture and other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to mental or physical health as was the case on July 20, clearly constitute crimes against humanity.
â€œIn view of this, [we], therefore, would like to call upon the ICC to come in and institute an investigation, prosecute and bring to book all relevant authorities who failed in their duties to safeguard the lives of the 20 people who died at the hand of the Police Service as well as 41 people who remained admitted in hospital.
â€œWe have also attached various photos showing the events of July 20 as well as clearly showing the brutality of the Malawi Police Service,â€ reads the petition signed by representatives from Human Rights Consultative Committee, the Malawi Congress of Trade Union, Centre for Human Rights and Rehabilitation, the Public Affairs Committee, Centre for the Development of People, Church and Society Livingstonia and Nkhoma synods and Civic and Political Space Platform.
HRCC chairperson Undule Mwakasungula said although government instituted investigations, it was important that the ICC should be contacted as well despite the death of Mutharika and the commission of inquiry issuing a report.
Said Mwakasungula: â€œWe want the ICC to investigate the events that led to the tragedy of July 20 by establishing the facts as to who gave the orders to shoot unarmed civilians and who ordered the cover-up of the truth. All this must be done in accordance with the parameters of international law.â€
â€œItâ€™s important to note that our own actions or the ICC interventions will help us deal with impunity to make sure that what occurred on 20th July where innocent civilians were killed should never happen again,â€ he said.
On the blame by the commissionâ€™s report that CSOs contributed to the chaos, Mwakasungula said the organisers of the demonstrations acted within the parameters of the law, including seeking permission.
â€œThe blame lays squarely on the heavy-handedness of the police and the conduct of the then government. As civil society, we acted nobly,â€ said Mwakasungula.
But Justice Link executive director Justice Dzonzi said with the change of political landscape and the enthusiasm from the new government to handle the matter, it was not necessary to involve the ICC.
Dzonzi said the request might have been made in the context of lack of trust that the government of that time, which was believed to be backing the alleged perpetrators of violence, would not carry out effective investigations.
The late Mutharika instituted a commission of inquiry to probe the events of July 20 and 21 and the report which was presented to President Joyce Banda on July 5 2012, blames the chaos that erupted on various factors.
However, the report faults the Malawi Police Service for using excessive force in dealing with the rioters and looters.
â€œThe commission established that the police used excessive force. Although it was established that lives of people, including police officers were in danger due to the public disorder which may have justified the use of force, the force used was not proportionate to the situation,â€ reads part of the report.
The inquiry also found the media, the organisers of the demonstrations, the injunction which was obtained by a DPP government sympathiser, political intolerance as some of the causes of the violence.
President Banda asked the Minister of Justice and Attorney General Ralph Kasambara to study the report and advise on whether the roles played by various individuals revealed criminal conduct requiring prosecution or misconduct necessitating other administrative action.