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IS THE SUBMISSION OF PRESIDENT UHURU KENYATTA TO THE ICC SUFFICIENT ENOUGH TO PIERCE THE AU’S IMMUNITY RESOLUTION VEIL?

OCTOBER 10, 2014 By Rashid Justice Dumbuya

A cold war between the ICC and African leaders had long persisted. But things took a wrong turn when President Umar Al Bashir and later President UHURU KENYATTA of Kenya were indicted before the ICC for alleged crimes committed against their own people. Before UHURU faced the ICC on Wednesday, it could be recalled that early this year, the African Union did meet and unanimously agreed over an immunity resolution that seeks to put a bar on African sitting heads of state from facing trials before an international court.

As a consequence of this resolution, many sceptics were of the view that it would be impracticable to see President UHURU KENYATTA submit to the ICC’s jurisdiction when his case commenced on the 8th of October 2014. But to the amazement of all, he did submit. The question then that arises is, whether this submission of UHURU KENYATTA is sufficient enough to pierce the veil of the African Union’s Immunity Resolution?

Before he left for The Hague, President UHURU KENYATTA told the world that he is handing over the presidency of Kenya to his vice and coming to the ICC as a private citizen…. SO, ACCORDING TO HIM, THERE IS NO NEED FOR HIS AFRICAN COUNTERPARTS TO BE PANICY. In his judgment, the AU Immunity Resolution still stands.

As an International Human Rights Lawyer, I find this to be quite ludicrous indeed and I will ridicule what UHURU KENYATTA did by using this analogy below.

“it’s like a black man using a plastic surgery on himself to look like a white man and after the surgery and the white skin transplant, he shouts to the world that he is now a white man (hahahaa). But apparently, the whole world knows that he was born in Africa and by African parents. Crazy perhaps!”

The questions that need to be asked are: Did UHURU’s name and status on the indictment and charge sheet before the ICC change? Did he answer to his name and charges put to him when the court was called to session? Did he raise an objection that a different UHURU is here? Did he make a fresh application for change of status? Did the court rule that his status has changed before the ICC going forward? NOOOOOO….all of these did not happen!

Naturally, when any head of state leaves his country, the vice will have to constitutionally act on his behalf. No ceremony or public show of conferment of powers is needed to get him to act. It kicks on the vice president automatically. So, I don’t really get the point of UHURU saying that he is handing over the presidency to his vice and coming to the ICC as a private citizen….(quite ludicrous indeed).

Agreed that the case against him might be dropped in the long run because of the fact that witnesses in Kenya are not cooperating with the court at the moment. However, the bigger positive outcome of his submission to the ICC is that, the AU’s Immunity Resolution has been fundamentally pierced! There is no two way about it. The ICC has won on this contentious issue and a precedent has been recorded under International Criminal Law and Jurisprudence. (We have on record President UHURU KENYATTA as the first African sitting president to stand trial at the ICC).

It is certainly a positive outcome to be welcomed given the overt impunity and insensitivity of African leaders to their people. They certainly should not be allowed to be above the law! It defeats common sense and logic for our African leaders to shield themselves from legal accountability before an International Court to which they are signatories.

That besides, if they really believed in African legal accountability at the expense of the ICC why are they still refusing to ratify the protocol that will ensure the establishment of the African Court of Justice and Human Rights in Africa? Let’s think about this critically!

It is also important to stress the point that it is not only cases from the African continent that are currently before the ICC. Whiles bulk has been on Africa, there are numerous cases from other continents that are before the court or are currently undergoing investigations. So, the notion of the Court’s bias on Africa could be exaggerated and merely apparent than real.

Furthermore, it is vital to also note that, a good deal of other states that have committed war crimes (USA under George Bush) or where heinous crimes are currently being committed like Syria, etc are not signatories to the ICC statue, hence the court cannot be seized of jurisdiction. It will take the UN Security Council to refer such states to the court before prosecutions can be initiated on them. But the politics within the Security Council has often precluded this from happening.

In conclusion, whether UHURU’S submission to the court can be argued as sufficient enough to pierce the veil of the AU’s Immunity Resolution could be predominantly a matter of personal construction. In my view however, I think it did. The International treaty/statute establishing the ICC is by far superior in weight and legal effects to that of a regional resolution. And because one signatory of the immunity resolution has boycotted, a case can be made.

*Rashid Dumbuya ESQ is an International Human Rights Lawyer and a practicing Barrister and Solicitor from the Republic of Sierra Leone. He holds a Bachelor of Arts and a Bachelor of Laws honours degree from Fourah Bay College, University of Sierra Leone, as well as a Master of Laws degree in International Human Rights Law from the Centre for Human Rights University of Pretoria, South Africa.

Dumbuya has worked for the UN Special Court for Sierra Leone and the UNDP’s Access to Justice Office in Freetown. He is currently an LLM candidate pursuing Petroleum Law and Policy at the University of Dundee, Scotland, United Kingdom.