KITUO CHA SHERIA BLOG

The dust has barely settled on the collapse of the cases against Deputy President William Ruto and journalist Joshua Arap Sang at the ICC but the strong forces of impunity are at work again, this time through the Constitutional Amendment Bill of No. 35 of 2016.

This bill championed by Igembe South MP Mithika Linturi proposes constitutional amendments to article 143 of the Constitution thereby extending immunities enjoyed by the President against civil and criminal proceedings, to the Deputy President. Further, the amendments extend the immunities for both the President and Deputy President to crimes for which they may be prosecuted under any international treaty to which Kenya is a signatory and which prohibits such immunity.

This article details the negative consequences of these proposed amendments and how Kenya risks sliding back to anarchy due to such retrogressive legislation.

Legal Consequences

The ‘Principal Objective’ of the Bill is to give effect to Article 2 (5) of the Constitution which states that ‘The general rules of international law shall form part of the law of Kenya’. The expectation therefore is that the proposals contained in the Bill should not only be directly linked to this particular Article but it should also put into practice or make operative that particular Article.

The amendment of Article 143 proposes the insertion Deputy President immediately after the word President so that immunities of the President extend to the Deputy. This proposal in our view is not controversial and does not warrant the splitting of hairs. Under international law, the doctrine of head of state immunity proposes that serving heads of state enjoy immunity ratione personae (otherwise known as absolute personal immunity) for each and every act undertaken while in office, regardless of whether they are done in a private capacity. This immunity is not limited to the heads of state, but attaches to all high-ranking state officials by virtue of the office they hold.

The controversy therefore does not lie in the addition of Deputy President in the various Articles, rather in the obliteration of criminal and civil responsibility of the Presidency to international law instruments and institutions.

The proposal seeks to exonerate both the President and the Deputy from instruments of international law. This contradicts Article 2(5). Therefore, on the face of it the Memo of the Bill as read together with the proposed amendments actually do not give effect to Article 2(5) as suggested. These amendments are at the very least misleading. The drafters of the Constitution understood that, to fully realise the potential of this Constitution then various legislations would have to be formulated. In the absence of these legislations then general rules of international law would fill the gaps unaddressed by national law.

Not so immune

Worthy to note is that even if these amendments were to be effected, the immunity as proposed is not absolute. Heads of state may still be subjects of international law institutions irrespective of this immunity if the United Nations Security Council (UNSC) deems the circumstances necessary. As is the case in Sudan and Libya where the UNSC referred the situations in Sudan and Libya to the ICC.

In addition, the ICC on its own motion, may also issue a direction to the Registrar of the court to circulate a warrant of arrest against a head of state just like it happened to Muammar Gaddafi. This was despite the fact that Libya was and still is not a signatory to the Rome Statute. The ICC also possesses the capacity to abrogate head of state’s immunity, because it presides over an international jurisdiction and that head of state immunity cannot apply before international courts.

In removal of customary immunities from Al-Bashir, the ICC considered that one of its core goals  is to end impunity for the perpetrators of the most serious crimes of concern to the international community, that the Rome Statute is applicable to all persons irrespective of status, that other sources of law (such as the customary law of head of state immunity) can only be resorted to when there is an irresolvable lacuna in the application of the rules of the ICC and that when referring the situation to the ICC , the UNSC accepted that investigations and prosecutions will take place in accordance with the Rome Statute.

Therefore a  defense or a preliminary objection to the exercise of the ICC’s jurisdiction on the ground that an accused person enjoys immunity under any law, whether international or domestic is not only vexatious but will be dismissed. In addition where there is a conflict between rules of International Law and Municipal/Local Law before an international tribunal (ICC), it has been proven that by precedent that International Law is supreme.

The ICC? No way, no how

It is important to note that the President and Deputy President were not acquitted by the ICC. There exists the possibility of future prosecution should new or fresh evidence be adduced before the Court by the prosecution. Therefore, the immediate intention of the government is to prevent this from happening through the Amendment of Article 143 (4). Both the President and Deputy President will not be under any Constitutional obligation to attend any potential future ICC hearings or proceedings. Politically, the 2 leaders must remain in power to use their positions to undermine the possibility of any fresh cases being brought against them either nationally or internationally.  The proposed Linturi amendments attempt to panel beat the constitution to protect and safeguard the political interests of the current leadership. The proposed amendments should also be viewed against the ongoing campaign by the African Union to insulate sitting Heads of State from prosecution by the ICC and cutting links with the ICC altogether. The AU has been urging its members to speak with one voice against criminal proceedings targeting “sitting presidents” and was particularly disappointed that a request to the UNSC to defer the trials of Kenyan leaders had not yielded positive results. Therefore, these amendments should be viewed as part of the local chain of events that will legislatively contribute to the wider agenda of Kenya pulling out of the ICC in furtherance of the stated AU position.

 Watering down of national values and integrity

The inclusion of National Values in the Constitution was informed by what seemed to be, in Yash Pal Ghai’s words a total breakdown of moral values and standards typified by great degree of corruption, the use of coercion by the state, and the suppression of human and community rights. In addition, Chapter 6 of the Constitution is a critical component in trying to realize ethical leadership in Kenya and requires strengthening. However, the proposed amendments represent a step backwards in this regard because it is an attempt by Parliament to shield Kenyan leadership from accountability to international law, treaty and conventions despite the latter three forming part of Kenyan law as per Article 2 (5) (6) of the Constitution.

This amendment can also create a dangerous precedence of turning Kenya into a future pariah state. This will happen in a situation where future Kenyan leaders are accused of complicity in commission of international crimes but are shielded from national prosecution by the Kenyan Constitution, necessitating a situation similar to Sudan’s where international warrant of arrests are issued thus effectively handicapping the said leaders from representing the country internationally and sabotaging the country’s foreign policy mandate and obligations.   The integrity of the state will be put to test through these amendments.

Healing and Reconciliation

Part of healing and reconciliation includes guarantees of non-repetition of the violence that took place. This includes amongst many other things the prosecution of suspects who committed crimes and justice for the victims. The proposed amendment will not add value to the search for meaningful healing and reconciliation in Kenya because it seeks to obstruct the application of international law by granting immunity to the President and Deputy President for international crimes or human rights violations committed by them or under their watch. In addition, it creates ground and provides opportunity for recurrence of political violence and gross human rights violations because perpetrators and especially those “bearing the highest responsibility” will feel sufficiently protected from prosecution by national law and insulated from international law by the Constitution.

By 

Aimee Ongeso, Marcelino Waithaka, Ashioya Biko and Wangari Karige.

Kituo Cha Sheria.