Draft exposes President to international criminal trials
By Wanyiri Kihoro
Clause 143(4) of the Proposed Constitution is as dangerous to President Kibaki, as it is curious in a national constitution and could turn out to be the only clause with a specific intention.
The sub-article, which is a new addition in our 40-year old effort to give the country a new constitution, has been introduced by the Committee of Experts without national inquiry or consultation and is not in the current Constitution or in the Bomas, Kilifi, Naivasha or Wako drafts.
Article 143(4) states that the immunity of the President from legal proceedings under this article "…shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity."
It is clear from this article that it alludes to the Rome Statute of the International Criminal Court, which entered into force on July 1, 2002. Kenya deposited the instruments of accession in New York in May 2005. AG Amos Wako, who did not table the Rome Treaty in Parliament for debate, did this.
Sub-article 143(4) is tailored to focus on Kibaki and provides that when he leaves office, he is unprotected from international criminal proceedings outside the country — more specifically at The Hague and a warrant of arrest could be issued anytime.
Under article seven of the Rome Statute, it is a crime against humanity to direct attacks against civilian population, which means "a course of conduct… involving the multiple commission of acts… against any civilian population pursuant to or in furtherance of a state or organisational policy to commit such attack."
Under article eight of the Rome Statute, it is a war crime to "…intentionally direct attacks against individual civilian population as such or against individual civilians not taking direct part in hostilities."
Lat year, Sudanese President Omar al-Bashir became a wanted man after being indicted on two counts of war crimes, that is intentionally directing attacks on civilians and also five counts of crimes against humanity alleged to have been committed in Darfur.
Whatever else might be said about article 143 (4) in the draft, Kibaki could well play a leading role in preparing the ground for his own arrest and indictment in future. On May 23, 2008, he appointed the Commission of Inquiry into Post-Election Violence (CIPEV) through Gazette Notice 2473 & 4473. The commission subsequently recommended that a Special Tribunal be set up to try those who bore the greatest responsibility for the post-election crimes, which were committed in Naivasha and other parts of Kenya.
hen the International Crimes Bill 2008 was later drafted and attempted to give Kibaki immunity from prosecution, the Bill could not be pass in Parliament; part of the reason being that it contradicted the Rome Statute in article 27 which prohibits a grant of such immunity.
At page 123 of the Waki Report, there is a finding of fact that those who raided Naivasha town at the end of January 2008 and committed acts of violence falling within article seven and eight of the Rome Statute held two planning meetings in State House. The report was handed over to Kibaki and the Panel of Imminent Persons in 2008 and all are privy to this ‘secret’.
Under article 27 of the Rome Statute, the official capacity of a Head of State/Government gives no exemption to such a person from answering charges and any exemption given by municipal law is not a bar to the court exercising its jurisdiction.
International criminal responsibility can attach directly or indirectly, where a person who orders, solicits, induces, aids, abets, assists or otherwise contributes or facilitates the commission of a crime could be prosecuted. This is a wide net to catch all if the court had the time and the resources to follow up. The court could also lay charges against Kibaki because of command responsibility; as a person who was exercising effective command and control of the events during the violence such that it can be construed that he had ‘constructive’ or ‘vicarious’ knowledge of the crimes, which were committed by the raiders who are deemed to be his subordinates.
The question is who gave the mandate to the CoE to graft international law into the draft without our knowledge to provide for the eminent prosecution of Kibaki at The Hague?
—The writer is an advocate of the High Court
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