November 19, 2013 Mad Hatter

INTERNATIONAL LAW SHOULD NOT ENTERTAIN IMMUNITY FOR SITTING HEADS OF STATE

ICCbuilding Recognizing that Uhuru Kenyatta is President, is not varying the notion that all are equal before the law, it is simply an understanding that a whole country has vested its trust in this person and that the quest for justice can only be irrelevant if it jeopardizes the interest of a nation.

Parties to the Rome statute will assemble in The Hague to discuss how effective or otherwise the ICC has been as a court since its establishment. Naturally, such a period of audit will invite reviews of the court’s performance and adjustments to the legal regime under which the court functions.

Kenya and the African union will be sponsoring several proposals. These range from the review of cases already handled by the court, review of certain cases currently before the court and amendments to the Rome statute.
One amendment that clearly should be supported is the proposal that an accused can attend a sitting via a video link. In my opinion, the accused-s’ physical presence in a court room serves no material significance to trial. In fact, unless the accused is expected to respond to certain questions, their presence only serves to show respect to the gravity of the situation without any real contribution to the fairness or otherwise of the trial process.

A true interpretation of the doctrine of presumption of innocence would require that the accused be given the liberty to choose whether they need to be physically present during their trial or whether they are comfortable being represented. Condemning an accused to present at the sometimes derogating trail process leans more to assuming they are guilty before such is objectively determined.

The proposal for a trial via video link resonates with the requirement of time. It will show that the accused is respectful to the process, as they will sit throughout the trial. The obsession with physical presence in court at this time reeks of an adolescent-like attitude of “gotchya”, you-are-where-I-want you-to-be, which cannot be the business of a legal system.

Further, if the trial by a video link, will afford relative convenience to the accused, allowing them to undertake their duties while attending to the trial, an opposition to such can only be sinister. In fact, in peculiar circumstances like the Kenyan case, the system of the court should attempt to realize justice conscious of the peculiarity of the circumstances.

Recognizing that Uhuru Kenyatta is President, is not varying the notion that all are equal before the law, it is simply an understanding that a whole country has vested its trust in this person and that the quest for justice can only be irrelevant if it jeopardizes the interest of a nation.

The second proposal however, that aims to secure immunity for sitting heads of state defeats the primary essence of the entire Rome statute.

Protecting a head of state from civil suits and miniature criminal suits during the subsistence of their tenure is justified as the institution of presidency cannot be dragged to every court. But where there is egregious violation of human rights, perpetuated by a sitting head of state, then that immunity has to be waived.

The peculiarity of Kenya notwithstanding, we have to remain strictly aware that the notion of leadership and good are inseparable. As such, the populace will always endeavor to elect ‘good’ people and in the natural state of event, good people do not face prosecution.

The ICC was created to deter impunity by facilitating prosecution where municipal systems were either unable or unwilling. It becomes then a natural conclusion that the prosecution of a country’s top political leadership is one of the most likely scenarios that the ICC may involve itself in. This is since; a country’s political class will likely have connections capable of crippling systems where a country’s institutions are not very strong.

In this entire debate, as we try as country to protect our president and his deputy by securing immunity, we are losing sight of one very important detail. The easiest way of securing our future as a country and a continent is not by securing immunity for our leaders, but strengthening our institutions.

The ICC, as clearly stated in the preamble to the statute, is complementary to the national justice systems; the easiest way to ensure that future presidents or even citizens of Kenya are not hauled to international courts, is to have our efforts go to remedying the deficiencies in our municipal systems.

In fact, I can almost suddenly predict, that the stature of international law cannot accord blanket immunity to anyone, and worse where human rights violation is involved. In fact, even in our own constitution, we have partially waived that immunity by saying that where a president is suspected to have done a crime under international and national law, then impeachment could be undertaken.

Essentially, what we anticipate as a country is to have a presidency without criminal allegations. And just that we find ourselves in a position as unfortunate as this, it does not mean we need to renegade on that pledge that we gave ourselves.

My prayer is that Kenya’s leadership is cleared of these allegations expeditiously and that as a country we can move on without the ICC

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