By MOSES MICHIRA
Kenya has informed UN Secretary General Ban Ki-Moon about its intention to have the Rome Statute amended to grant immunity to sitting heads of State from prosecution by the ICC.
Notifying Ban now sets the stage for the 122 members to either adopt or reject the amendmend as Kenya fights to save President Kenyatta and his deputy William Ruto from prosecution while still in office.
Kenyan Foreign Affaird Cabinet Secretary Amina Mohammed yesterday said the proposed amendments had been finalised and presented to the UN, expressing optimism that the ICC State Parties would adopt them to allow its leaders run the country and meet international obligations.
“Kenya will push for amendments on Articles 27 and 134 of the Rome Statute… We have sent a notice to UN Sec. Gen Ban Ki Moon” Mohammed said on the sidelines of the ongoing assembly.
Kenya would need the support of 81 member states to pass the amendment that could have far-reaching implications on the operations of the ICC and the international justice system.
ICC challenges
It would however be effective only after 12 months from the date the proposal is adopted, meaning President Kenyatta’s case scheduled to start on February next year could be interrupted, if the amendment passes.
Mohammed’s statement came just a day after Mr Ban indirectly raised fears about the amendment proposed by Kenya in a statement read of his behalf at the ongoing assembly of State Parties.
Mr Ban had told the meeting that the law must be delivered independently, impartially and in conformity with international human rights laws and standards – a position that Kenya is trying to fight through its proposed amendment.
“ICC faces the fundamental challenge of upholding the core principles of justice, equality and the rule of law: that the law applies equally to all,” said Ban in a statement delivered by Miguel de Serpa Soares, UN Legal Counsel and Under-Secretary-General.
Mr Ban had also asked all nations in the World to ratify the ICC to ensure that it became a universal court to enhance its effectiveness in the delivery of justice, coming at a point the Kenyan Parliament has taken the initial steps towards withdrawing from the Rome Statute.
“Only once the Rome Statute has been universally accepted can the Court be as effective as we would wish it to be, with a truly global reach,” Ban added.
By the end of the third day of the assembly yesterday, Britain’s proposal to have the Kenyan leaders follow their cases at the ICC via video link received critical backing from several members, raising the prospects that President Kenyatta and Ruto could be allowed to skip the proceedings.
Kenya had however said that it was not interested in having its leaders follow their proceedings by video link saying the push it was leading at the assembly was no longer a local idea but that of the African Union.
National Assembly Majority Leader Aden Duale said that the government would be disappointed should Britain’s proposal be adopted yet the ICC had severally declined similar requests by both Kenyatta and Ruto.
“We will be vindicated in our belief that the ICC is a political court. Why would Britain’s proposal be adopted while when we requested the same, we were turned away?” Duale posed in an interview yesterday.
Total impunity
Mr Duale said Kenya is only interested in total immunity for the two leaders and any other heads of State. “We want nothing less.”
Attorney General Githu Muigai had in the previous session made strong submissions why the two leaders should be granted immunity while still in office, stating that trying them at the ICC would threaten regional security.
Three civil societies however made their presentations yesterday opposing the government of Kenya’s demand which they claimed would encourage impunity in future while denying justice to the victims.
George Kegoro the executive director of the ICJ said that the AU was asking Kenya to violate its own constitution, which does not recognise immunity for the president from criminal prosecution.
“AU is encouraging Kenya to contravene its own Constitution which does not allow the President not to be prosecuted…The AU cannot tell Kenyans not to prosecute the President when Article 143(4) of the Kenya Constitution says he is not immune.”
Transitional justice lawyer Njonjo Mue said Kenya’s intended amendment would incentivise the criminals to capture power at any cost in order to evade accountability.
Betty Okero said victims of the post-election violence had been forgotten and nothing meaningful had changed in their lives since they were affected by the 2007/8 crisis.
Meanwhile at the ICC, Mr Ruto’s ongoing trial at took an early adjournment after the prosecution suffered yet another witness hitch, to reconvene on January 13 next year.
The court was expected to take a break on November 29 but has now been adjourned after the last witness finished giving his testimony.
The prosecution told the judges that it was unable to produce its next witness P032 immediately due to a ‘variety of reasons’ while the possible alternative would take longer than the time allocated by the court.
Additional reporting by Capital FM
