Why ICC cannot expressly bar immunity for Uhuru Kenyatta and William Ruto


The debate about the International Criminal Court has been very intense and divisive in Kenya for the last three years. Before the former ICC prosecutor, Luis Moreno Ocampo, invoked his proprio mutu powers in Article 15 of the Rome Statute to the ICC to commence investigations in Kenya, very few Kenyans knew of the existence of such a court.

Today, almost all Kenyans know about the existence of such a court but very few understand the working of the court and the politics and diplomacy dynamics that surround the court.

Against this background, Kenyans will keenly watch as the first trial of a Kenyan citizen and above all a high ranking one, William Ruto, begins this week. In addition, the trial will begin at a time when parliament has successfully initiated plans to have Kenya quit the Rome Statute, which established the ICC.

Regardless of which opinion one holds, this will not just be an ordinary trial of a citizen. It extends to the trial of Kenya as a state. Kenya will face trial for not having the will to domestically prosecute international crimes and also for not having a credible judicial system between 2008-2010. In fact, Kenya has on this yardstick been tried before and “convicted” by the ICC. When President Kibaki’s administration contested the admissibility of the Kenyan cases before the ICC, the ICC judges were categorical that Kenya lacked the goodwill to prosecute the crimes.

These trials will definitely shape the jurisdiction and landscape of international criminal law and international customary law. It will be the first time that a sitting head of state and his deputy will be charged for international crimes that were committed before they assumed office. In many instances, like the case of former Liberia President Charles Taylor and Augustiono Pinochet of Chile, such charges are brought once a leader leaves office.

In this respect, the question on whether or not these leaders enjoy immunity arises. Although it seems easy to answer this question because Article 27 of the ICC’s statute bars immunity of any form, the interface between the ICC’s statute, our Kenyan Constitution and the decision of the UN’s International Court of Justice (ICJ) would make it difficult to answer this question.

Our Constitution, which is the supreme law of Kenya, acknowledges in Article 6 that any treaty ratified by Kenya forms part of the Kenyan laws but the same Constitution in Article 143 (1)-(3) protects the President from any criminal and civil proceedings during his tenure. However, Article 143 (4) of the same Constitution waives immunity of the President if he hss been prosecuted under a treaty that bars such immunity like the ICC one that Kenya has ratified.

On the same issue of immunity under international law, the judgment of Pinochet before the UK House of Lords and that of Yerodia/Arrest Warrant Case 2002 before the International Court of Justice would give very divergent views, though valid, of immunity of heads of state before the ICC. The UK House of Lords held that Pinochet would face charges for crimes committed during his tenure but in the Yerodia case, the ICJ held that serving heads of state, heads of government and foreign ministers enjoy a broad personal immunity from the jurisdiction of foreign domestic courts, including immunity from prosecution for international crimes. The immunity of heads of state was also dealt with by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Blaskic case. The Chamber accepted that international law immunities can be pleaded before an international tribunal.

Obviously, these are confusing precedents from three credible judicial institutions and the need for this matter to be made clear at the international criminal law is important. In fact, this explains why one of the renowned scholars in the ICC processes, Dapo Akande, has criticised the court for not seeking an advisory opinion from ICJ on this issue of immunity for high ranking government officials. For now, any prosecution of Kenyatta and Ruto while in office can be challenged on the grounds of immunity.

The writer is a lawyer