UHURUTO’S ICC CASE: FROM VAGUE TO HAGUE TIME Never had Kenyans paid so much attention to a matter of political importance like the criminal charge facing their President and Vice president of the Republic of Kenya, Uhuru Kenyatta and Williams Ruto (Uhuruto). The both were charged along with a radio journalist, Josiah Sang, for committing crimes against humanity in the 2007-8 post-election violence that erupted in the country which claimed over a thousand lives and many others displaced. Since 2008, the ICC case has been perceived much in terms of it being vague with little developments on the matter. However, the recent turn-down by the ICC prosecutor, Fatou Bensouda, of the request by the Kenyan government that Uhuru be allowed to participate in the proceeding via video link clearly shows that the Hague time has finally arrived. The trio will be attending the status conference slated for Wednesday 8th October, 2014. Uhuru will be the first sitting Head of state to appear before the court. This case raises importance legal and political issues as to the constitutionality or otherwise of the appearance of Uhuru vis-à-vis international and municipal laws as well as the immunity clause in the Kenyan Constitution (2010). Some legal scholars have accused the Hague court of attempting to humiliate African leaders and particularly the Kenyan government when viewed from the perspective that since the court inception in 2002, the court has open investigations in 20 criminal cases in eight African states with more to come than it has in all other world regions combined. Others have hinged their arguments on the supremacy of the Kenyan constitution noting that the president is protected from legal proceeding while in office pursuant to Article 143(1)(2) of the constitution. At first, it is pertinent to note that Kenya, unlike US and Russsia, is a party to the Rome statue and given the binding provisions on International law enshrined in Kenyan constitution, Uhuru will have no option than to honour the court’s invitation. Articles 2(5)(6) read; “The general rules of International law shall form part of the law of Kenya” and “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution”. Article 143(4) perfectly brings Uhuru under the jurisdiction of the ICC. It reads; “The immunity of the president under this article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is a party and which prohibits such immunity”. More importantly, Article 98 of the ICC statute is reflective of the reluctance of the Hague court to surrender or assist where it would require a state party to act inconsistently with its obligations under International law with respect to state immunity of a person. More so, the Universal Declaration of Human Rights (UDHR) is maintained as part of International Customary law whose elements are; ‘settled practice’ and ‘a belief that practice is rendered obligatory by the existence of a rule of law requiring it’ (opinio juris). Kenya, therefore cannot derogate from norms of International law. Since the charge leveled against Uhuru borders on violations of Human Rights of his people, the legal principles on the protection of human rights which are the principles underlying Human right treaties are applicable as binding on state even without any conventional obligation. African leaders have also wage in through the African Union to request the review of the ICC statute to give immunity to African presidents against prosecution. The AU summit held on Saturday October 12, 2013 at the request of Kenya, had advised Uhuru not to appear before the court. The Kenyan government has shown its discontent for the ICC through its absence at the UN General Assembly last year and also featured no representation at the meeting. It will be recalled that a resolution was made by the two Houses of the Kenyan parliament asking the National government to initiate the process of pulling Kenya out of the ICC statute; the instrument that binds the country to the ICC. Though approved, but was thought later by the executive to have negative consequences on Uhuru’s case at the Netherland court. As fate now have it that Uhuru will appear next Wednesday, Kenyans wait to see the outcome of the status conference. Alao Idris writes from Kenyatta University, Nairobi, Kenya.
Posted on: Sun, 05 Oct 2014 08:01:18 +0000
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