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Kenya faulted on move to force Uhuru/Ruto ICC immunity

02 July 2014, 14:31 Dennis Masinde

Nairobi - Kenya has been faulted by an international caucus for forging ahead with plans to make the president and his deputy immune from prosecution whilst in office.

The International Bar Association IBA, a caucus for international jurists says that the move by the government to lobby the International Criminal Court ICC and other African nations to support the plea to have sitting heads of state and their deputies immune from prosecution while in office is a bad idea.

The IBA says that for sitting heads of state and senior government officials to be granted immunity from prosecution for genocide, war crimes, crimes against humanity and crimes of aggression, the cardinal legal principle that no one is above the law will be abused.

President Uhuru Kenyatta and Deputy President William Ruto are on trial at the ICC facing charges of crimes against humanity.

IBA president Michael Reynolds is adamant that such a move if enacted will open a Pandora's box in future situations.

" What should be paramount in the collective mind of the international community is promptness in the administration of justice. We should not lose sight of this because Kenya’s President and Deputy President are on trial at the ICC.’

He insisted that the basic principles of equality will be decimated if such a move comes into force.

" At this intersection of politics and law, the principle of equality of all before the law is more important than ever, and the international community should be steadfast in defending its integrity, he added.

Kenya is seeking amendments to Article 27 of the Rome Statute – the treaty that established the ICC, and to The Draft Protocol on Amendments to the Statute of the African Court of Justice and Human Rights – which will merge the African Court on Human and Peoples’ Rights with the Court of Justice of the African Union, and will expand criminal jurisdiction over international crimes.

Presently, under Article 27 of the Rome Statute – Irrelevance of official capacity – Article 27(1) states that the law ‘shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility.’ Further, Article 27(2) states: ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’

Kenya wants Article 27 amended to include Article 27(3): ‘Notwithstanding paragraph 1 and 2 above, serving heads of states, their deputies and anybody acting, or is entitled to act as such, may be exempted from prosecution during their current term of office. Such an exemption may be renewed by the court under the same conditions.’

Similarly, Kenya’s proposed amendment to Article 46A of the Draft Protocol on the Statute of the African Court of Justice and Human Rights (Draft Protocol) reads: ‘No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.’

IBA Executive Director Mark Ellis further voiced the concerns raised by Kenya's actions.

" The suggested amendments to exempt government officials from prosecution contravene one of the foremost principles of the Rome Statute.’ He added, ‘Furthermore, any amendment to the Rome Statute cannot be affected retrospectively. Thus, irrespective of any amendments, or even Kenya’s withdrawal from the ICC, the ongoing investigations and prosecutions of President Kenyatta and Deputy President Ruto will not be halted.

" However, the long term consequences of any of the proposed amendments being passed will have an extremely detrimental impact on the judicial process, he said.

Kenya, through foreign affairs cabinet secretary Amina Mohammed has put up a longstanding fight against charges at the ICC, which the country as well as other nations feel undermine basic sovereignty of African nations and their leadership.

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- News24


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