Uhuru at ICC: Damned if he goes, damned if he doesn’t

Saturday October 04 2014

President Uhuru Kenyatta is this week set to travel to The Hague for the International Criminal Court Status Conference in a development that has presented him with a major dilemma.

People close to the presidency said the decision to attend the conference, in a case in which he is charged with crimes against humanity in relation to the post-election violence of 2007/2008, was informed by the tribulations facing the Sudanese President Omar al-Bashir against whom a warrant of arrest has been issued.

Legal experts note that President Kenyatta’s decision to attend the ICC Status Conference on October 8 is likely to provoke a review of the relationship between the Court and the African Union that had advised against the move and threatened non-co-operation.

READ: ICC meeting to discuss Kenya’s co-operation

According to John Waiganjo, a lawyer and Member of Parliament for Ol-Kalou, President Kenyatta’s attendance flies in the face of the AU summit resolution of last October, but more so, was the realisation that the challenge was personal and not even his peers could help in case the Court issued a warrant of arrest.

This may be particularly relevant because of the fact that President Kenyatta is currently under obligation to attend court at the ICC whenever the judges require him to. The condition was set by the judges of the Pre-Trial Chamber and preceded his election as president and the AU’s resolution.


The situation presents the dilemma of either ignoring the AU resolution and attending court, in which case, political analysts argue, the president would have subjected himself to the humiliation of sitting in the dock of a supposedly foreign court, or declining to attend and risking a warrant of arrest being issued, with the attendant embarrassment such action would invite on the president and country.

“President Kenyatta is likely to earn respect by showing that even though he is the president, he is first a citizen of the world who respects the rule of law. His attendance will be a win for ICC because the court will be seen as having the power to summon, while it also sends a message to other African leaders that they will be forced to attend should they find themselves in a similar situation,” said Mr Waiganjo.

The ICC judges had earlier in the week rejected President Kenyatta’s request to skip the conference and a suggestion for adjournment to a later date, and to allow him to attend through a video link, and ruled that the president must be present in person.

The president had said he needed to participate in the Northern Corridor meeting in Kampala on October 8 and Uganda’s Independence Day celebrations the next day.

At an extraordinary session of the AU Assembly last October, African leaders — who have been complaining that ICC is targeting Africans — passed a resolution that sitting African heads of state should not appear before any international court while in office.

Specifically, they resolved that, “President Uhuru Kenyatta will not appear before the ICC until such time as the concerns raised by the AU and its member states have been adequately addressed by the UN Security Council and the ICC.”

Subsequently, Kenya on behalf of the AU, had proposed an amendment to the Rome Statute to introduce such immunity for sitting heads of state that was to be put before the ICC Assembly of State Parties (ASP).

The African leaders later in July this year adopted a new protocol adding jurisdiction over international crimes to the mandate of the African Court of Justice and Human Rights during the AU Summit in Malabo, Equatorial Guinea.

But they added a provision that incumbent leaders and senior government officials suspected of committing genocide, war crimes and crimes against humanity would not be charged or tried by the Union’s Court of Justice and Human Rights, based in Arusha Tanzania.

READ: Crossroads: Can AU save Uhuru from the ICC?

However, Elizabeth Evenson, a senior counsel in the International Justice Programme, maintained that the ICC treaty made it clear that there was no immunity from prosecution for sitting heads of state and that the AU resolution struck at the very heart of the ICC, which stood for holding to account those who committed the world’s worst crimes, regardless of rank or position.

Ms Evenson also focuses on the ICC’s investigations of the 2007-2008 post-election violence in Kenya and advocates for domestic prosecution of serious crimes in Kenya.