Kenya continues with its push to tame the International Criminal Court (ICC) during a crucial African Union meeting next week.
There is a determination to save President Uhuru Kenyatta and his deputy William Ruto the humiliation of standing trial in The Hague by pursuing a two-pronged approach through the African Union and the Assembly of State Parties to the Rome Statute.
President Kenyatta’s trial at the ICC for crimes against humanity linked to the 2007/2008 post-election violence is tentatively set to start in October, while Mr Ruto’s on-going case resumes tomorrow in The Hague.
The African Heads of State meet at Malabo, Equatorial Guinea from June 20 to 27 for the 23rd AU summit that will consider a proposal to insulate sitting Heads of State and senior government officials from prosecution for international crimes during their tenure.
The Draft Protocol on Amendments to the Protocol on the Statute of the African Court also expands the jurisdiction of the continental court to cover international crimes, which the ICC handles.
AU ministers of Justice and attorneys-general met in Addis Ababa, Ethiopia, in May where they proposed the granting of immunity for sitting Heads of State and senior state officials. They also suggested the merging of the existing African Court on Human and People’s Rights with the Court of Justice of the African Union, which the African Union proposed in 2003.
“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government,” the draft proposal stated.
“It was not much of a debate because the African Heads of State had called for it,” Ms Elise Keppler of the Human Rights Watch told Sunday Nation in reference to the passage immunity clause by the ministers of Justice/attorneys-general.
WRITTEN TO AU
The amendments have already been opposed by at least 40 civil society organisations that have written to the AU expressing fear of the creation of “a sphere of impunity for high-level perpetrators” and the creation of “an incentive for such perpetrators to hold on to power indefinitely”.
The Kenyan government is also pursuing amendments to sections of the Rome Statute that establish the ICC during the ASP convention in December. Last month, Kenya suggested, through the United Nations Secretary-General Ban Ki Moon, five areas of amendments in the Rome Statute.
Key among them is that “serving Heads of State, their deputies and anybody acting or is entitled to act as such may be exempt from prosecution during their current term of office. Such an exemption may be renewed by the Court under the same conditions.”
In addition, Kenya wants the Rome Statute to explicitly state that ICC trials can take place in the absence of the accused persons. The proposal also intends to stretch the definition of complementarity by providing that ICC can only act if national and regional courts fail to act.
This will give room for regional courts like the East African Court of Justice and the proposed African Court to take precedence over ICC. The Rome Statute currently recognises only the national courts.
Other changes Kenya wants introduced are that the Office of the Prosecutor and third parties should be held accountable for offences against the administration of justice and the establishment of the Independent Oversight Mechanism “for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.”
Stella Ndirangu of the International Commission of Jurists-Kenya, said the proposal to set up the African Court will be tabled in Malabo but “there is no clarity on which government officials this provision would apply to”. She said there were unresolved issues such as the definition of the crime of unconstitutional change of governments.
Mr Stephen Lamony of the Coalition for ICC, told Sunday Nation that the AU proposals are beset with the challenge posed by the national laws of some member states, including Kenya and South Africa, that explicitly remove immunity for sitting heads of state.
“Some of the African delegations in New York were complaining about the text of the immunities clause because it will conflict with existing domestic laws which state that a Head of State or senior government official can be held accountable for international crimes,” said Mr Lamony.
He added there were also suggestions that such amendments would conflict with the protocol of the prevention and punishment of the crime of genocide, war crimes and crimes against humanity and all forms of discrimination signed by the International Conference on the Great Lakes Region.
The Rome Statute which establishes the ICC, unlike the proposed African Court, has no provision for immunity merely on a person’s status.