Kenya is calling on the United Nations’ judicial body to issue an opinion on whether national leaders should get immunity in international legal proceedings.
The request is contained in a recent letter to UN Secretary-General Antonio Guterres by Kenyan UN ambassador Lazarus Ombai Amayo, acting for the African group of UN member-states.
Mr Amayo asked Mr Guterres to include the African group's request for an advisory opinion as an agenda item for the UN General Assembly session that starts next month.
If the General Assembly agrees to support the Kenya-led initiative, the UN’s International Court of Justice, often referred to as the “World Court,” would be asked to offer a nonbinding opinion on the question of immunity for heads of state and other high-ranking national officials.
“In recent years, the issue of immunities has become one of the most pressing issues in international law,” Mr Amayo told the UN chief.
The move spearheaded by Kenya takes place amid opposition by some African countries to the International Criminal Court’s long-standing effort to prosecute Sudan President Omar al-Bashir for alleged crimes against humanity, genocide and war crimes related to the conflict in the Darfur region.
The Kenyan government waged a long campaign against the ICC’s indictment of President Uhuru Kenyatta and Deputy President William Ruto for crimes against humanity, stemming from the violence that took the lives of at least 1,200 people and displaced thousands of others after the 2007 election, whose presidential result was disputed.
The case against President Kenyatta was dropped in 2014, while Deputy President Ruto’s was dismissed in 2016 for lack of evidence.
Kenya also kicked off a campaign at the African Union, lobbying members to pass a resolution for mass withdrawal from the Rome Statute. Early in 2017, the AU adopted the resolution for the mass withdrawal of member states from the International Criminal Court.
The resolution was, however, non-binding, with Nigeria and Senegal opposing a withdrawal.
South Africa, Burundi and the Gambia had announced their intention to withdraw, accusing the ICC of undermining their sovereignty and unfairly targeting Africans.
While Burundi successfully pulled out of the Rome Statute, South Africa’s bid was thwarted by a national court, which declared it unconstitutional.
Gambia reversed its decision after its president, Yahya Jammeh, was replaced by Adama Barrow in the 2016 elections.
Mr Amayo says that the issue of immunity for national leaders is “of crucial concern” to UN member-states.
The Kenyan envoy said the legal obligations of UN members are derived from a variety of sources, including “customary international law.” And that form of law makes provision for “the immunities of heads of state, a member of a government or parliament, an elected representative or a government official.”
The diplomat acknowledges in the memorandum that an ICC Pre-trial Chamber has ruled that under international law immunity cannot be invoked for heads of state in regard to prosecution by an international court.
In response to Mr Amayo’s letter, Human Rights Watch said that immunity should not be granted to heads of state and other national officials accused of war crimes, genocide or crimes against humanity.
Elise Keppler, deputy director of the rights group’s international justice programme, told The EastAfrican that “there should be no escape hatch for leaders.”