Law President okayed returns to haunt him

By Kenfrey Kiberenge

When President Kibaki assented to the International Crimes Bill 2008 on December 24, he must have been in a festive mood.

After all, it was the Christmas eve and unlike the previous year when he had been bogged down by a General Election that pollsters had branded "too close to call", this time the President was cosy.

Seven months later, the piece of law has returned to haunt him.

Now his lieutenants, ministers John Michuki (Environment) and Moses Wetangula (Foreign Affairs), are fighting a losing battle by clamouring for the President to be offered immunity from prosecution, under the proposed law establishing local tribunal to try post-election violence perpetrators.

The Government appears to have realised this with reports that the sub-committee to resolve the deadlock on tribunal law is considering withdrawal from the Rome Statute as an option.

But with opinion polls revealing majority (68 per cent) Kenyans prefer The Hague to a local tribunal, the proposed withdrawal will prove to be a tall order for the proponents. A withdrawal would also have little impact, if any, especially considering the fact that the International Criminal Court has indicted Sudanese President Omar El-Bashir even when Sudan is not party to the Statute.

Speaking to the VoA’s Straight Talk Africa on Wednesday night, ICC Chief Prosecutor Luis Moreno-Ocampo said the UN Security Council usually refers such cases to them; something the council would gladly do on Kenyan case.

And Justice and Constitutional Affairs Minister Mutula Kilonzo maintains the ICC standards require the President should not be offered immunity in the trial for crimes against humanity.

Global Ridicule

"I won’t expose the two principals (President and the Prime Minister Raila Odinga) to international ridicule by offering them immunity contrary to the Rome Statute, which is now part of our law," stated the minister.

On March 15, 2005, when Wako deposited its instrument of ratification at the UN in New York, he boasted: "We are proud of our international reputation as a key peace-builder on the African continent. Becoming party to the ICC will help us continue to pursue this crucial role in the world."

Interestingly, most of those calling for immunity for the President sat at the Cabinet meeting when the Bill was adopted and were, also, part of the Parliament that debated and passed it into law. Saitoti also gave the law a commencement date of January 1, this year, well aware of its stiff provisions.

In article 27 of the Rome Statute, which deals with "irrelevance of official capacity", the law categorically says heads of state and government will not be offered immunity.

"This statute 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 a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence," it states.

It goes on to trash any form of immunity such as the one offered to the President under the national constitution. The statute adds that the head of state could be held responsible for any crime because he is mandated to stop violence.

Way Out

The only way out for the President would have been to go the US way — refusing to sign or ratify the law. But it is now too late.

After years of negotiations aimed at establishing an international tribunal to punish perpetrators of genocide and crimes against humanity, the UN convened a conference in Rome in June 1998 to finalise and adopt a convention on the establishment of an international criminal court.

And a month later (July17), the Rome Statute was adopted by a vote of 120 against 7, with 21 countries abstaining. Kenya voted in favour of the court and became the 84th country to sign it on August 11, 1999.

Those who voted against the treaty include the US, Iraq, Israel, Libya, China, Qatar and Yemen. However, former US President Bill Clinton unexpectedly reversed his position and signed the treaty on December 31, 2000, but stated that would not submit it to the Senate for advice and consent until the his Government assessed the functionality of the court.

Two years later, the George Bush administration said it was nullifying the US signature of the treaty. Then, Ron Paul, a Republican presidential candidate in the 2008 elections, said: "The Constitution is the supreme law of the land, and the conflict between adhering to the rule of law and obeying globalist planners is now staring us in the face. At present we fortunately have a President (Bush) who opposes the ICC, but ultimately it is up to Congress — and concerned citizens — to ensure no American ever stands trial before an international court."

In the US, Senators argued the treaty could not be ratified without a constitutional amendment. And since America’s constitution declares the Supreme Court is the final arbiter on what the law of the US is, it would therefore, not allow a cession of judicial authority to any body other than the US Supreme Court.

Violates sovereignty

Other arguments were that it violates international law, is a political court without appeal, denies fundamental American human rights, denies the authority of the UN, and would violate US national sovereignty.

This is the variance between the US and Kenyan cases. While the US Government has to get the nod from the people’s representatives before ratifying any major agreements, Kenya’s MPs serve as mere rubberstamps.

"The Executive here is legally required to consult Parliament while signing or ratifying any international agreements. They only act as rubberstamps during domestication," said Mutula, adding this will change when the new constitution comes into effect.

Besides refusing to sign the Rome Treaty, the US has also made a number of Bilateral Immunity Agreements (BIAs) with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees and nationals.