Revoke power of International Criminal Court Prosecutor to initiate investigations

By Dann Mwangi

Kenya: The Assembly of State Parties (ASP) to the ICC consists of member states and observers from other states that have signed the Rome Statute.

Amongst other core duties that the ASP discharges, it provides management oversight to the Presidency, the Prosecutor and the Registrar.

These functions of oversight over all organs of the court are critical as the success or failure of the prosecutorial role of the ICC is largely determined by the institutional capacity and strength of all the court’s organs.

So far, there are strong views by different actors that ICC has largely been unable to address impunity in the world due to lack of capacity and vision in the court.

Therefore, there is urgent need for ASP to initiate reforms in the court as if it fails to do so, the ICC will not succeed in addressing impunity. The current standoff between many African states and the ICC reinforces the need for ASP to initiate reforms in the court.

The fact that African states form the largest continental bloc that has signed the Rome statute to the ICC reiterates why ASP must transform the court.

In this regard, many fundamental questions have faced the ICC and these forms the basis why ASP should reform the ICC. There have been valid accusations that ICC is only dwelling on international crimes that have been committed in African countries but chosen to ignore crimes that have occurred in other continents and this has led some, like the Ethiopian Prime Minister to accuse ICC of being in a “race-hunting mission”.

To put it succinctly, the former Chairman of African Union Commission, Jean Ping, has contended that while international crimes are being committed all over the world, for example in Iraq, Sri Lanka and Columbia, the ICC seems to focus only on Africa.

He further states, “…We are not against the ICC ... But we need to examine their manner of operating. There are double standards. There seems to be some bullying against Africa”.

The same questions have been asked by distinguished African scholars like Professor Mahmood Mamdani who has stated, ““... the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are US adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in Eastern Congo, effectively conferring impunity on them.”

In addition, the powers of the Office of Prosecutor to initiate prosecutions on its own have been a subject of intense debate and controversy.

There has been strong opposition against this power of the prosecutor to initiate prosecutions and this date backs to the diplomatic plenipotentiaries that led to the ICC’s statute.

Kenya was one of the countries that were against the powerful powers of the prosecutor,  as advised by the former permanent secretary for foreign affairs, Mwangi Thuita.

And in a strange turn of events, Kenya is the first case where the prosecutor used this power to initiate investigations. Moreover, powerful countries like the US, which sits in the UN Security Council, were against the powers of the prosecutor to start investigations and this eventually made the US exit the Rome Statute.

Therefore, this powerful nature of the prosecutor’s office, which remains unchecked as stated by the US in its withdrawal from the ICC needs to be reviewed as the ASP meets later this month. So far, there has been blatant abuse of this power as the prosecutor has refused to investigate situations that fall under the jurisdiction of the ICC.

This has created a wedge between the African Union and ICC and this only hampers prosecution of crimes.

The Kenyan cases facing President Uhuru and his deputy have also sparked debate about the legality and constitutionality of the Rome Statute as it denies immunity of sitting Head of States despite that largely all states grant immunity to such officials.

Overall, previous prosecutions of high-level state officials have been done after they leave office as seen in Charles Taylor and Augustino Pinochet situations but the Kenyan cases have elicited the need for immunity of such officials as no country can be managed well when such individuals are facing such charges and have assumed office through a democratic process.  

The writer is a lawyer.