African leaders horrified when laws they passed return to haunt them

By Barrack Muluka

May 31 to 11 June 2010 a review conference of the Rome Statue took place in Kampala, Uganda. Addressing the Assembly of States Parties (ASP), Uganda’s President, Yoweri Museveni, said three critical things.

First was that he belonged to a political organisation that had fought impunity for 45 years. Second, the worst crimes against the people of Uganda had been committed by Africans against fellow Africans. But most significant was a confession. President Museveni had never read the Rome Statute. He did not know whether the things he wanted to suggest were in the statute or not.

Maybe it is unreasonable to expect the Head of State to read every piece of international covenant that his country ratifies. That is why Heads of State have experts in various areas. It is expected that such persons will adequately educate themselves on the essentials of international covenants before advising that they should be ratified. But do these people really read these things? Just how rigorous is the legislative process in Africa? How well is the African Head of State advised by his notables and allied experts?

These questions must trouble us when legislations we have made in the past return to trouble us. Fifteen years ago 120 states adopted the Rome Statute. Today the statute has come back to haunt Africa. This week some African member states to the ICC sponsored a Motion to amend Article 27. The article says in part, “This statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a Member of Parliament, an elected representative  . . . ”

When Uganda was ratifying this statute, did President Museveni know of the existence of article 27? But perhaps Museveni had no immediate cause to imagine that this statute could someday be relevant to him, or his friends. Indeed, at the 2010 Kampala meeting he was pained by rumours that the ICC cells were “five star hotels.”

He was worried that a five-star hotel awaited Joseph Kony of the murderous Lord’s Resistance Army. 

What is the Kenyan experience? We ratified the statute in 2005. It is of interest to reflect about the rigour that we put into ratification of this law. Parliament is the institution charged with ratifying international laws. Such laws will be either accepted or ejected in whole. How much rigour did our National Assembly inject into ratifying the Rome Statute? Did Kenya’s MPs in 2005 recognise that they were accepting the possibility that Kenya’s President could be handed over to the ICC for trial, even as he enjoyed immunity against commencement or continuation of trial at home?

But if someone slept on the job in 2005, what should we say of the year 2010, when we promulgated the new Constitution? Article 143 (1 and 2) gives the President Immunity against Prosecution in both civil and criminal matters. Section (3) of Article 143, however, anticipates the possibility of the President being tried after his term of office ends. This section freezes time lapse in any matter in which the President enjoys immunity by virtue of office. This means that fluxion of time will start counting the day the President leaves office.

The telling section is, however, Section (4) of Article 143. It states, “The immunity of the President under this Article shall not extend to a crime to which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.”

It is instructive that we promulgated this law at a time when everybody was anxiously waiting to know the names in the famous Philip Waki envelop on the post-election violence of 2008. At that time, just about anybody’s name could have been in the envelope, including President Kibaki’s. However, it was the same President Kibaki who proudly waved the Constitution before the world.

As President Kibaki waved the Constitution, was he aware that it carried an article that could see his aide de camp surrender him to the police of a foreign country for trial? Have the 33 other African Heads of State and government known before this year that the Rome Statute does not give them immunity against prosecution before the ICC?

As the Assembly of State Parties sat in Kampala to review the statute, was President Museveni the only African leader who had not read the statute? Was he the only one who did not know of the dreaded Article 27 of the statute? More to the point, as we seek to amend article 27 of the Rome Statute, do we also need to amend our Article 143 (4)?

Former Tanzanian President Julius Nyerere, once excoriated the softness in the heads of Africa’s notables. He decried the ease with which they are mesmerised with vacuous and wooly materialism. When they become Members of Parliament, it is not the opportunity to legislate that titillates them. It the trappings and perquisites of office. Away in foreign capitals on duty, they laze about in their rooms in five-star hotels. They sample assorted liquids and wallow in bevies of rare meats.

Meanwhile other people haggle over laws that will come to haunt the African. Others gambol away in the streets, lost in shopping or – more precisely – in window-shopping for some of them, anyway. When they come back home, they have no idea what commitment they have just placed the country into.

And now we have carried our slanderous impunity and draconian ignominy to the international arena. We are busy thumping our chests. We are twisting everybody’s arms. We spew invective and threaten decent people for exercising their rights in accord with laws that we have ratified. Worse still, we proudly bundle ourselves together with some of the most retrogressive regimes in the world. From suffocating political rooftops we flaunt our amity with the worst of humankind.

When you have made a mistake, you do not correct it by abusing and threatening other people. Our emerging diplomatic gaffes are truly scandalous. We insult people today and expect them to vote for us tomorrow. Our country is steadily going to the dogs. God help us.

The writer is a publishing editor, special consultant and advisor on public relations and media relations