Transitional Justice lawyer Njonjo Mue made the following remarks at the ongoing ICC Assembly of State parties at the Hague objecting an AU ammendment being pushed by Kenya to postpone the trial of President Uhuru Kenyatta until he leaves office.
The speech pushed Kenyaâ€™s civil society position and countered an earlier presentation by Kenyaâ€™s Attorney General Githu Muigai leading the pro-amendment Kenyan delegation.
â€œModerator, distinguished delegates, ladies and gentlemen, I thank you for this opportunity to address the Assembly on these important discussions on the indictments of sitting heads of states.
There is need to look at the impact the proposed head of state immunity will have on victims and affected communities.
Today as we discuss the proposed amendments to the rules of procedure and the Rome Statute it is important to take into consideration the following realities touching on the affected communities, victims and by extension post conflict societies:
That the Rome Statute system deliberately ensured that there would be no immunity for any individual on the basis of official capacity. Equality before the law for grave crimes is a fundamental tenet that is not only recognized by the Rome Statute but also by international practice and increasingly adopted by national jurisdictions.
For example, contrary to the assertion of the Attorney General, my country Kenya has codified this tenet into its Constitution. Article 143 (4) provides that immunity of the President from criminal prosecutions does 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.
The perspective that the court is a court whose justice applies equally to all regardless of their status in society is the very reason it has received significant support from post conflict countries and more so those that the court is actively involved in.
Most Victims and affected communities have supported the court because of the realization that the court is capable of dispensing justice even when the alleged perpetrators are the most powerful members of society. A reality that does not exist in the judiciaries of most post conflict States.
The proposed amendments are likely to reduce the ICC to the same situation as the national judiciaries that affected communities rarely can place their faith in. In other words, the proponents of these amendments seek to remake the Court in the image of the very inadequate judicial systems that the Court was created to complement.
The Rome Statute targets only those most responsible for serious crimes of international concern.
Looking at the cases that have been opened both at the ICC and other international tribunals, those most responsible tend also to be influential members of society who have the power and financial wherewithal to organise and plan for systematic commission of very serious crimes.
The proposed amendments would give those individuals the incentive to use their influence to capture power in order to evade accountability.
These amendments therefore risk making impunity a prize to be won in an election, as well as a reason why having won that prize, leaders are likely to cling onto power to continue evading accountability.
Kenyaâ€™s Attorney General says that Kenya is a willing member of the Rome Statute and was not dragged kicking and screaming to the ICC. I agree with him. But once it became clear who was sought to be indicted, that it was some of the most powerful people in the country two of whom subsequently became President and Deputy President, the government has pulled out all the stops to enable the accused persons to evade accountability. The Prosecutor of the ICC is on record as saying that she has faced serious challenges with regard to cooperation from Kenya.