The AU Bid at the ICC Assembly of States Parties: Seeking to Legalize Impunity


The rejection of a joint request from the African Union (AU) and Kenya by the United Nations Security Council to defer the ongoing cases of the President of Kenya and his Deputy is a positive contribution to the development of international criminal justice.

The three African States (Rwanda, Morocco and Togo) sitting as non-permanent members of the Security Council (hereafter the Council), made a diplomatic error on insisting on a vote when it became apparent that they could not obtain the minimum nine positive votes with the concurrence of the five permanent members necessary to adopt a draft resolution.

The AU failed to persuade at least eight members of the Council that continued prosecution of the Kenyan leaders would constitute a threat to international peace and security. Further, the AU failed to establish a nexus between the tragic terror attack at the Westgate Mall in Nairobi and the broader threat to international peace and security as stipulated in Chapter VII of the UN Charter.

Instead of appreciating the position taken by the US and the UK in abstaining, and thereby remaining neutral, the AU blamed the US and the UK for not voting for the deferral even after it was clear that the AU presentation at the Council meeting, did not meet the minimum UN Chapter VII threshold.

The unfortunate voting pattern that emerged is that all seven members of the Council, including Africa’s representatives, voted for the deferral of the cases. All the states are not States Parties to the Rome Treaty.

On the other hand, of the eight members who abstained, seven are State Parties to the Rome Treaty. However, while the United States is not a State Party, the Obama administration has consistently supported the ICC. The US ambassador for War Crimes, Mr. Stephen Rapp, is a strong advocate of international criminal justice and has consistently supported the ICC. His past experience as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda; and later, as Chief Prosecutor at the Special Court for Sierra Leone, has placed him in a unique position to advocate for, and advance the cause of international criminal justice, as well as to influence policy options taken by the United States on the ICC.

Undermining the Rome Treaty

After losing the battle for deferral, the AU has now moved on to undermine the core objectives of the Rome Treaty by seeking amendments to provide immunity from prosecution to sitting Heads of State.

In the preamble of the Rome Treaty, State Parties agreed to put an end to impunity for the perpetrators of genocide, crimes against humanity, war crimes and aggression. The objective is to contribute to the prevention of such crimes.  Because of this determination to end impunity, the States Parties adopted Article 27(1) which provides for the equality of all accused persons before Court. The article states: “This Statute shall apply equally to all persons without any distinction based on official capacity…” And, Article 27(2) states that whatever “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”

Because these provisions are fundamental, any proposed amendment to any of these provisions requires three months’ notice.  This would give State Parties opportunity to study the proposal and make meaningful contribution during deliberations on the matter. Kenya, acting under the AU and also as a State Party to the ICC, flagrantly ignored the rules on notice. Why indeed?

Article 121(2) of the Rome Treaty states: “No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, by a majority of those present and voting, decide whether to take up the proposal…” And, under Article 121(4) of the Rome Treaty, “an amendment shall enter into force for all State Parties one year after instruments of ratification have been deposited with the Secretary General of the United Nations by seven-eighths of them.”

The Assembly of States Parties scheduled a meeting to be held from 20 November to 28 November 2013. In breach of Article 121(2) of the Rome Treaty, Kenya submitted its proposed amendment on November 4, 2013 and November 7, 2013 respectively.

On November 4, 2013, Kenya’s Permanent Representative to the United Nations, Mr Macharia Kamau gave notice to the ICC seeking to amend Article 63(1) and Rule 134 of the Rules of Procedure and Evidence (the Rules).

Article 63(1) stipulates a mandatory requirement of an accused to be present during his trial. Kenya’s proposed amendment to Article 63(1) seeks to provide for ‘excusal’ of an accused from continuous physical presence at trial.

On November 7, 2013, Kenya’s Deputy Permanent Representative to the United Nations, Koki Muli Grignon, wrote to the ICC requesting for four additional amendments, namely (a) amendments to Articles 27, 70, 122; (b) amendment to the preamble to capture the principle of complimentarity at the regional level.

Article 27 declares that the Rome Statute shall apply equally to all persons without any distinction based on official capacity. The article also excludes immunity from the jurisdiction of the Court even where an accused may enjoy immunity from prosecution of such crimes in other national or international jurisdictions.

Notwithstanding that Kenya did not comply with Article 121(2), the Chairperson of Assembly of States Parties (ASP), accepted the Kenya proposal to be tabled for discussions. Had the proposal been rejected, as strict compliance with the Rome Treaty would demand, allegations of bias against Africa would have probably been made.  The Chairperson of ASP correctly accepted the proposal notwithstanding the procedural flaws made by Kenya.

Legal scholars tend to agree that even if Articles 27 and 63 were to be amended and eventually ratified under Article 121(4), the new amendment will not come into force until after one year (see Article 121(6)). It is therefore unlikely that any new amendments to the substantive articles of the ICC Statute will cover on-going Kenya cases.

Overall, ASP is encouraged to examine amendments of the Statute and the Rules in general terms and not to address specific cases currently before the Court. The process of examining proposed amendments broadly will enhance the positive development of international criminal law.

Obote Odora, A. is Consultant in International Criminal Law and Policy, Sweden.


  • AfriCOG statement at ASP

    AfriCOG statement at the ASP meeting:

    Click to access ICC-ASP12-GenDeba-Kenya-ENG.pdf

  • This is an excellent in-depth analysis of the Jubilee Government’s deperate bid to maintain impunity by attempting to introduce immunity to Uhuruto for selfish reasons, without caring for the victims of Kenya’s post-election violence. Uhuru in particular, should have some dignity and face his trial at the ICC, as he had initialy promised.

    It is people like Attorney General Githu Muigai and Foreign Affairs Cabinet Secretary Amina Mohamed, who deceive President Uhuru Kenyatta. Instead of using their legal minds to understand the requirements for amending the Rome Statute, they run around chest-thumping and criticizing the Western world for not supporting them. If the condition for filing amendments is three months in advance, who will these two clowns blame if Thursday’s ruling at the ongoing Assembly of States Parties to the Rome Statute meeting dismisses their bid?

    Right thinking Kenyans should begin questioning how much money is being spent in the current shuttle diplomacy to free Uhuruto. The two were accused long before their bid for the presidency and should therefore not keep the country tied to this personal matter yet they chose not to support the creation of a special local tribunal.

  • How Uhuru Kenyatta was Rigged!>>>>

  • These drug Baron Stores Narcotics in a Military Base in Eastleigh where KDF Protects these dreadful narcotic barons>Obama (FBI) should arrest them and place them in Guantanamo or inside US Aircraft Carrier in 6th Fleet (in the Indian OCean)>Among the 10 include former Kilome MP Harun Mwau, Kiambu Governor WilliamKabogo, Nairobi Senator Gideon Mbuvi alias Mike Sonko and Mombasa Governor and former Kisauni MP Hassan Joho. Kamama (Tiaty, URP) told the House that despite a police report saying there is no evidence to sustain charges against the four, investigations on their assets are underway after which a report will be tabled in Parliament.

    “The report had mentioned Mwau, Sonko, Kabogo and Joho. However, after investigations were completed there was nothing to incriminate them. But I would like to tell this House that investigations on their assets are ongoing,” he said. Kamama, who also told the House that investigations on the other six are ongoing, expressed concern over why the assets of the four are being investigated yet they had been cleared. He told the House he will summon Interior Coordination Cabinet Secretary Joseph Ole Lenku, AttorneyGeneral Githu Muigai, Director of Public Prosecutions Keriako Tobiko and director of Criminal Investigations Ndegwa Muhoro to shed light on how far the investigations had gone are and why the assets of the four politicians are being profiled. “We must bring this investigation to an end. Once we meet we will table the report in a week,” he said.

  • Why Kenya has taken EAC chair

    Top Stories

    Thursday, 28 November 2013 23:01
    Written by Edward Ssekika

    Uganda’s Museveni (C) will be handing over to Kenya’s Kenyatta (L) after Rwanda’s Kagame rejected the Chairmanship
    In a tactical manoeuvre aimed at strengthening his posture in the face of menacing International Criminal Court (ICC) charges, the East African Community presidents have elected Kenya’s Uhuru Kenyatta as the next chairman of the five-nation bloc.

    The choice of Kenyatta is a well-calculated move on the part of the EAC, which will take the western powers by surprise as the rotational leadership of the bloc was supposed to go to Rwanda first and thereafter Burundi.

    Instead, President Kagame pulled out, citing the need to concentrate on internal engagements such as next year’s 20th genocide anniversary, which analysts have termed a feeble reason.

    President Museveni, the incumbent chairman, will accordingly hand over EAC leadership to Kenyatta at the end of Saturday’s proceedings at the Imperial Royale hotel in Kampala.

    The minister of state for EAC Affairs, Shem Bageine, will also hand over the chairmanship of the council of ministers to his Kenyan counterpart.

    Bageine confirmed that the chairmanship of the community was supposed to move from Uganda to Rwanda, then Burundi, then Tanzania, before finally returning to Kenya on a rotational basis.

    He, however noted that Rwanda had excused herself and Burundi was not ready.

    “The chairmanship has gone back to Kenya on agreement, since Kenya was ready,” Bageine said.

    But some analysts believe the EAC leaders are using Kenyatta’s chairmanship as a possible shield against the ICC charges. Kenyatta and his deputy William Ruto, who were elected earlier this year, are facing charges of crimes against humanity in relation to their roles in the 2008 post-election violence in Kenya.

    Uganda and Rwanda in particular and the African Union in general have been pushing for the suspension of the charges. Last week the UN Security Council voted to reject this idea.

    Fred Mukasa Mbidde, a Ugandan representative in the East African Legislative Assembly (EALA), says Kenya’s chairmanship of the community means a lot for both embattled leaders.

    “I think the EAC chairmanship is intended to work as extra bargaining power against the ICC prosecution. As a sitting president and a chairperson of a regional bloc, it will enable him [Kenyatta] to push further for immunity,” Mbidde said today.

    Without confirming this as the reason behind Kenya’s elevation to the EAC post, Bageine nevertheless alluded to Mbidde’s school of thought.

    “If they [ICC] touch him [Kenyatta], then it would be an attack on the entire East African Community,” Bageine said.

    Packed agenda

    Elsewhere, the summit has a packed agenda that includes a session where the leaders will iron out political differences amongst partner states. Tanzania and Burundi are opposed to unilateral actions by the so-called ‘coalition of the willing’ – Rwanda, Uganda and Kenya – who have been meeting separately to discuss mainly infrastructural projects.

    Saturday’s meeting will, indeed, be the first time that Tanzania’s Jakaya Kikwete and Burundi’s Pierre Nkurunziza have met their Ugandan, Kenyan and Rwandan counterparts on matters related to the EAC bloc. Yet the latter three have since June met three times in Kampala, Mombasa and Kigali.

    ‘Coalition of the willing’: Paul Kagame (L), Yoweri Museveni (C) and Uhuru Kenyatta


    However, Bageine advises analysts not to read too much into this fact, arguing that all the five states are still committed to the EAC.

    “Even in a family there are always disagreements, but does that break the family? Despite these recent disagreements, we are still one as the East African Community,” he said.

    Bageine added that the Saturday meeting would also be attended by the chairperson of AU Commission, Dlamini Zuma. One of the summit’s key agenda is to put ink to paper on the proposed East African Monetary Union (EAMU), a milestone in the region’s integration process.

    Dr Enock Bukuku, deputy secretary general for planning and infrastructure, said that after signing the EAMU protocol, the East African Legislative Assembly (EALA) would pass bills to create institutions to support the economic framework.

    “The signing of the monetary union protocol will get us on the road to a single East African currency,” he said.

    With that step taken, regional institutions to jointly monitor economic performance across the region will have to be created.

    These institutions, according to Dr Bukuku, include the East African Monetary Institute, East African Statistics Bureau and East African Central Bank.

    “We shall also establish the East African financial services commission or authority to regulate and supervise financial services. We are going to have one regional market for financial services, harmonize and merge the capital markets, insurance and pensions in the region,” Dr Bukuku explained.

    South Sudan, Somalia

    Somalia, together with South Sudan have too applied to get into the EAC
    The heads of state will also consider the applications of South Sudan and Somalia to join the community.

    On Somalia, Bageine said the horn of Africa country’s admission would take a bit of time due to some procedures that have to be followed.

    He explained that a verification committee would submit its report to the council of ministers next April.

    That report would then be discussed, adopted by the council, and forwarded to the next summit in Nairobi.

    The presidents are expected to crown their summit with a joint public rally, the first of its kind in Uganda, at the Kololo grounds.

  • Dracura sucking blood in Kikuyu-land ???

  • the dysfunctional jubilee govt after compromising constitutional office of parliament,independent commissions like iebc,police service commission,,having moved on the media,NGOs,is now in most brazen attack is dismantled the judiciary service commission by removing six members rendering judiciary impotent.
    I ironically judiciary and iebc handed jubilee of uhururto govt on silver platter by rigging elections and dismissing cord petition at a time when Kenyans and the world were widely preparing for and expecting a rerun when acabal of tribal group would have been sent packing.little did Kenyans know that jubilee assisted by kibaki had infiltrated the judiciary through abdi nassir,gladys shollei,ojwang,tanui, and lots of money had been passed that evidence should not be allowed.abdi nassir was a hero so was judge warsame,ojwang and the whole lot.
    jubilee got govt and has now turned to destroy all institutions of governance in Kenya to pave way for their selection in 2017 and the rallies in rift valley and central have said as much. Kenyans were cajoled to accept and move on.jubilee is busy destroying the little of what restoration of semblance of order in govt by narc and grand coalition you have rogue one sided narrow govt,.. good in propaganda and copy cat of Uganda,Rwanda and china.
    what can we do.see how hullabaloo was created about meeting of state parties of Rome stature.Kenya shouted horse and magnified their achievement at the amendments of statuette.Kenya behavior is despicable because they have led Kenyans to believe and equate everything about Rome stature and ICC to be Kenya not the rest of the world.
    amina abdalla,githu muigai,kamau-kenya un envoy etc had field day spending billions of money lobbying for changes and shouting and abusing western states who disagreed that despotic and rogue presidents in Africa be made above the law even when they instigate violence and kill people to force people to accept sham election outcomes.
    why does amina want immunity for president and his deputy ? that if in 2017 they commit election rigging and unleash violence on opposing Kenyans they will not be touched again by ICC ? is Kenya preparing for another round of lawlessness in 2017 ?
    why insist on immunity yet uhurutos current case are not affected.isn’t it because they have future elections in 2017 in mind ?

  • Gema-Kikuyu PropagandaEqual to Joseph Goebbels>

  • Jubilee noise makers

    How UK came to Uhuru’s rescue at The Hague
    Updated Saturday, November 30th 2013 at 21:23 GMT +3

    By Stephen Makabila and Jacob Ngetich

    Fresh details have emerged on how the United Kingdom (UK) government played a pivotal role in pushing the hybrid motions (excusal and use of video link) that saved Kenya at the Assembly of State Parties (ASP) meeting at The Hague.

    While the Kenyan government had originally banked its hope on the African Union’s failed motion for immunity of serving heads of States to shield President Uhuru Kenyatta from prosecution, the video link motion that was approved was sponsored by Britain. The second motion on trial of the accused in absentia and partial recognition of Heads of State (rule 134) was sponsored by Greece and Guatemala.

    Had the ASP meeting failed to pass any motion that was to the advantage of Kenya, the ICC had already pronounced that Uhuru attends court sessions in person.

    It has emerged that an official at the British Foreign Office in London and another official at State House, Nairobi, played a key role in softening the Kenyan opposition to Britain’s video-link proposal.

    “We had to make the President understand that resisting use of the video-link was not wise, especially if AU’s immunity motion was to be defeated. That would have exposed him because ICC had already said that Uhuru should be at The Hague in person,” said our source who sought anonymity so that he could speak freely on the subject.

    History and International Relations expert Prof Macharia Munene says Britain changed its heart to protect its long-term interests in Kenya.

    “They realised they have to change tack to protect their long-term interests,” says Macharia who lectures at the United States International University-Kenya.

    The Chief Executive of the African Policy Institute (API) Prof Peter Kagwanja points out that from a security point of view, Britain has realised Kenya is pivotal to the stability of former British colonies on the African continent. He further notes Britain’s earlier move to abstain from voting during the United Nations (UN-Security Council) meeting, was because it had underestimated AU’s resolve on the ICC cases facing President Uhuru and his Deputy William Ruto

    “Come the ASP meeting and Britain was careful not to push AU and Kenya to the corner. That is why it argued Uhuru and his deputy have extra-ordinary public responsibilities, leading to amendments of Articles 134, 68 and 100 that allows them not to attend ICC in person, use of video link and recorded testimonies not being used in the current cases,” he says.

    Kiambu Senator Paul Wamatangi says Kenya’s matter was not a strategy but an issue of asking a friend to demonstrate his friendship or?else the friendship is reviewed.

    Reacted angrily

    He would therefore?expect the UK government to continue with the ties that they?demonstrated during the ASP meeting.

    Speaking to The Standard on Sunday, Communications consultant and an ally of the President Tony Gachoka said he asked Uhuru to disregard “praise singers around him” and embrace the West in the best interest of this country.

    “Following the defeat of the AU sponsored motion for deferral at the UNSC, the stakes ahead of the Assembly of State Parties could not have been higher for President Uhuru and his deputy. Unfortunately Jubilee leaders and powerful forces in State House took hardline positions that even saw a proposed motion of censure against the UK brought to Parliament. But in a game-changing move, London sponsored a motion for video link and together with Greece and Guatemala pushed through a hybrid amendment to Articles 68 and 134 of the Rome Statute. This is what saved Uhuru. The AU motion of immunity did not even make it to the agenda,” said Gachoka.

    But Foreign Affairs Secretary Amina Mohamed has indicated Kenya wants to re-introduce the proposal to amend Section 27 of the Rome Statute to shield serving heads of states and government from prosecution.

    “We have given notice of a Special Assembly of State parties to discuss the amendment of Article 27 on the immunities of heads of state and government. We expect such a meeting to be convened after the 90-day notice period expires in the first quarter of next year,” said Amina on Friday.

    Gachoka said the motion of immunity is “bad in law and smelly in politics”.

    He said that what happened at the ASP meeting was an international compromise on the Kenyan situation based on the current global geo-political re-alignment. “The support of Britain to Kenya at the ASP meeting was probably the most significant diplomatic move since the Mau Mau payout,” adds Gachoka.

    The House of Commons had earlier debated the ICC case and the need for UK to stand with Kenya.

    Jubilee leaders reacted angrily and threatened to sever diplomatic ties with the UK after it failed to vote in UN. Senate Majority Leader Prof Kithure Kindiki warned Jubilee leaders?will push President Uhuru to cancel the arrangement in which?British military trains in Kenya to protest UK’s stand on the ICC deferral bid.

    When the House of Commons debated the ICC question in October, the Parliamentary Under-Secretary of State for Foreign and?Commonwealth Affairs Mark Simmonds had this to say, “The relationship between the countries today is one of partnership, shared mutual interests and shared concerns, through being members of?the Commonwealth, through strong commercial security and through?personal ties.”

  • Farming Technologies.

    This is a very highly farming of daily-milk cattle there is jobs here>But Kikuyus cannot get jobs here,hence they can have sex with cows >

  • No win for Kenya

    Sobriety returns to AU, Kenya continues drunk

    Posted Saturday, November 30 2013 at 16:43

    The Assembly of State Parties to the Rome Statute is over. And, in the end, it did adopt amendments to the rules of procedures and evidence.

    Any accused may now request, in writing, for presence through video technology. Or for excusal from presence, including due to “extraordinary public duties.”

    Are these amendments the “big win” the spin would have us believe they are? The answer, frankly, is no.

    First, the amendments are to be applied on a case-by-case basis — and only when alternative measures have been considered and deemed unfeasible.

    In addition, the Rome Statute continues to override the rules of procedures and evidence — particularly if concern is raised that application of the new rules on excusal from presence undermines the principle of equality of all accused persons. The amendments do not, thus, amount to a “get out of jail free” card for the Kenyan accused.”

    Second, the haggling over the draft amendments only served to obscure two bigger points. There was no appetite for amendments to the Rome Statute itself — particularly as concerned possible presidential immunities.

    And, by the time the ASP happened, as well as during the course of its special segment, the African solidarity behind the Kenyan accused had begun withering away.

    Some francophone African states alluded to surprise at Kenya’s constitutional position limiting presidential immunities in respect of existing treaties — like the Rome Statute.

    Other African states like Tanzania reconsidered their position in respect of the new African alliances Kenya had sought to build for precisely this end — feeling those alliances were, in effect, at their expense.

    Yet other states like South Africa lifted their heads from the sand and thought about what supporting the Kenyan accused would signal for their more hegemonic aspirations.

    All of which is good — considering the African Union’s Constitutive Act allows for AU intervention in its member states, with or without their consent, on the basis of the very grounds that constitute the Rome Statute’s remit: Crimes against humanity. Genocide. War crimes.

    But… it’s never over until it’s over. The second question is if Kenyatta and Ruto will smell the coffee and stop dragging the Kenyan state into their personal affairs.

    It is unclear. The political mood in parliament continues to be aggressive. Devolution continues to roll out in alarming ways. Infrastructure deals are being concluded with haste outside of normal procurement procedures.

    Nobody’s following what’s happening with oil exploration deals — except local officials whipping their constituents into frenzies for pieces of the action.

    Security is high on everybody’s agenda but questions of effectiveness are swept under the carpet. Dissent and protest is being criminalised.

    In short, we march on boldly to the fascist world of hyper-nationalism combined with deep conservatism. Sobriety may be returning to the AU. But it also needs to return here.

    L. Muthoni Wanyeki is doing her postgraduate studies at the School of Oriental and African Studies (SOAS) in London.

  • Kibo Stefano wada

    Mtoto Mla -Mamba>

  • Posted Monday, December 2, 2013 | by- TIMOTHY KEMEI

    URP leaders accuse allies of corruption


    A row looms after some MPs allied to one wing of the Jubilee Coalition claimed there were two centres of power within the government.

    The MPs allied to United Republican Party (URP) said the high ranking government officials wield massive influence and make decisions without the approval of President Uhuru Kenyatta and his deputy William Ruto.

    Speaking in Kericho County at the weekend, the MPs said that these well-placed officials had on several occasions awarded themselves illegal authority to approve actions behind the backs of the President and his deputy.

    However, the legislators refused to reveal their identities, with Nandi Hills Member of Parliament Alfred Keter only saying that the individuals in questions “were well known”.

    “We know them. Whenever Mr Ruto goes to The Hague for the hearing of his case, they do their own things. They even run things when President Kenyatta is in the country alone, but is too busy to notice anything,” he said.

    He added that the same people were behind the highly inflated cost of constructing Mombasa-Kampala railway project launched by the President and Mr Ruto in Mombasa last week. The railway will cost Sh1.2 trillion

    The MPs were attending the funeral of Mama Lucy Taplelei Yegon, the mother of Kipkelion West MP Jackson Rop.

    “The internationally accepted cost of constructing a standard gauge electric rail is $2 million per kilometre. Why are we spending $6 million per kilometre here? There are thieves in the government who are behind this,” he said.

    Bomet East MP Bernard Bett agreed with his colleague, adding that there were officials in the government who were seeking to enrich themselves through involvement in irregular tendering, procurement and contracting processes.

    While admitting that many legislators were not in agreement with the project costs, he defended President Kenyatta and Mr Ruto, saying they could have been kept in the dark about the expected costs by those who had been put in charge of the project.

  • ICC Trust Fund for Victims

    Sweden contributing to international fund for victims of crime

    The International Criminal Court (ICC) session of the Assembly of States Parties in the Hague was concluded last week. During the session, Sweden announced a new contribution of SEK 36 million for the period 2013-2015 to the Trust Fund for Victims that was established in connection with the ICC.

    This is the largest single contribution ever from a State party. Sweden’s total support thus amounts to SEK 50 million, which makes Sweden one of the largest donors to the Trust Fund for Victims.

    A number of new procedural rules for the ICC were established during the session. The amended rules concern prior recorded testimony, video link possibilities and excusal from presence at trial.
    The purpose of the new rules is for trials to be conducted more efficiently and for the principles of the Rome Statute and the Court’s integrity to be upheld. The Court must now apply the new rules.

    In recent times, the ICC has faced criticism from a number of African countries, including Kenya, whose president, Uhura Kenyatta, and vice president, William Ruto, are standing trial for crimes against humanity. Kenya has been lobbying strongly for the ICC to show greater flexibility in terms of requirements concerning the presence of the accused at trial. The new rules will mean some relaxations, but it is up to the Court to decide.
    Sweden supports the Court’s work on accountability, which also helps to increase respect for human rights. Sweden is also pushing for the Rome Statute to be ratified by all countries, as it will then be possible to apply it throughout the world.

    The Rome Statute and the ICC

    The Rome Statute of the International Criminal Court currently has 122 member states, including all EU countries. The aim of the ICC is to bring to trial those ultimately responsible for the most serious international crimes: genocide, crimes against humanity and war crimes.

  • Amina Mohamed defeated

    AMINA MOHAMMED has done nothing – ICC judges still have power to decide UHURU/ RUTO excusal – GEORGE KEGORO.

    At the end of the Assembly of State Parties, Kenya’s Foreign Secretary Amina Mohamed took to social media, triumphantly declaring that “today is a win for our country and a win for our continent. No one should underestimate the unity of Africa.”

    She was referring to the decision of the Assembly which amended the rules of evidence as part of Kenya’s multiple-pronged efforts to save President Uhuru Kenyatta from facing the International Criminal Court, before which he has charges for his alleged role during the post-election violence of 2007/2008. But what exactly did these amendments achieve?

    To answer this question, the relationship between the Rome Statute, on the one hand, and the Rules of Procedure and Evidence, on the other, must be explained.

    The Rome Statute is the basic instrument that establishes and governs all aspects of the ICC. It is the “constitution” of the ICC.

    The statute mandates state parties to make rules of procedure and evidence to address the detailed management of trials. These rules derive from, and are subordinate to, the statute with which they must be consistent or be void.

    Kenya would have wanted the ASP to approve an amendment to the statute to provide for head of state immunity, consistent with the resolution made at the extraordinary summit of the African Union in October. However, such a proposal was time-barred and could not be discussed at the ASP.

    The African Union, however, forced the late inclusion in the ASP agenda of an item to discuss head of state immunity in a general, non-binding, manner.

    During this discussion, African states that had supported head of state immunity in Addis Ababa capitulated and failed to back Kenya’s quest for immunity.

    Kenya had also proposed an amendment to the rules of procedure to provide for the excusal of the President during the trial. Liechtenstein, Jordan and Botswana also suggested amendments of the rules similar to Kenya’s.

    The United Kingdom, pressured by the weight of the Security Council decision rejecting Kenya’s application for a deferral, offered its own amendment of the rules to enable the use of video technology as an alternative to physical presence.

    However, Kenya, enjoying the pressure under which it has put the UK, rejected this proposal. In the end, Kenya was prevailed upon to accept the UK proposal which all other delegations supported.

    Kenya wanted an automatic excusal from trial for persons mandated to fulfill “extraordinary public duties at the highest national level”.

    Although other states were prepared to allow the excusal, there was disagreement over whether this should be automatic or not.

    Most states were reluctant to make it automatic, arguing that the court should be allowed to decide this on a case-by-case basis.

    In the end, the text agreed on was that “persons mandated to fulfill extraordinary duties at the highest national level may submit a written request to the court to be excused from attendance” and to be represented by counsel and that, “the Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided the rights of the accused are fully ensured.”


    The terminology of “case-by-case” was dropped from the final text, leaving much uncertainty if an excusal should be made once for the whole trial, or from time to time.

    In practical terms, therefore, when the Kenyatta case comes up in February 2014, his lawyers can apply to the court for an excusal arguing that, as President, he is weighed down by extraordinary duties in Kenya, and should not attend trial.

    Since Kenya failed to get the Assembly to take away the court’s discretion to adjudicate on such an application, it will be up to the judges to decide whether or not to grant the excusal.

    When Judge Sanji Monageng, the Deputy President of the ICC, met delegates at the ASP, she reminded them that rules of procedure, on which they were deliberating, are subsidiary to the statute and that since the statute requires presence at trial, they could achieve a change of this position through an amendment of the rules.

    Therefore, if Mr Kenyatta makes such an application, the court will still have to decide whether or not to allow him to skip his trial. Indeed, on the same day that the rule amendment was agreed on by the ASP, the ICC ruled that Mr Kenyatta must go for his trial in February.

    As a legal process, the amendments by the ASP are unhelpful and even confusing. They address an issue that rules of court cannot address since the statute does not allow that, and which, moreover, the court has already dealt with in its decisions. Further, they devalue the meaning of irrelevance of official status before the ICC, a foundational tenet of the statute.

    The amendments are, however, not without political implications. First, they signify that the ASP has caved in to Kenya’s pressure and is prepared to give Mr Kenyatta a trial of his liking, irrespective of the law.

    In this regard, Amina Mohamed’s triumphalism is on point. Second, they confirm that the ASP, which is the court’s political protector, has now turned hostile against the court, just like the AU before.

    The effect is that the ICC will come under immense political pressure to excuse Mr Kenyatta from trial irrespective of any other legitimate interests. Ambassador Amina is right to feel how she feels.

    By George Kegoro- International Commission Jurists (Kenyan Chapter) Director

  • Do you know Kenya Defence Forces)Kikuyu defence Forces is at war with THÉ REPUBLIC OF TURKANA

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