ICC Cannot Prosecute Sitting Head of State- AU


Kenyas presidency of Uhuru and Ruto are both facing chargers at the ICC

Somalilandsun: The African Union-AU has decided to set up a contact group of the Executive Council to undertake consultations with the members of the United Nations Security Council (UNSC), in particular, its five permanent members, with a view to engaging with the UNSC on all concerns of the AU on its relationship with the ICC, including the deferral of the Kenyan and Sudanese cases, in order to obtain their feedback. This should be done before the expected beginning of the trial of the Kenyan President at the International Criminal Court. AU Chairperson Mr Haile Mariam Desalegn said “if the request does not a response, Heads of State agreed to request postponement of the trial”. The Assembly also agreed that Kenya should send a letter to the UNSC requesting the deferral, in conformity with Article 16 of the Rome statute, of the proceedings against the President and Deputy President of Kenya. This letter would be endorsed by all African States parties.

These decisions were made at the extra ordinary session of the Assembly of the African Union, which met in Addis Ababa today, within the framework of the theme “Africa’s relationship with the International Criminal Court”.

After reaffirming the principles deriving from national law and international customary law, by which sitting heads of state and government and other senior state officials are granted immunities during their tenure of office, the Assembly decided that, “No charges shall be commenced or continued before any international court or tribunal against any serving head of state or Government or anybody acting in such capacity during his/ her term of office. To safeguard the constitutional order, stability and integrity of member states, no serving AU Head of State or Government or anybody acting or entitled to act in such a capacity, shall be required to appear before any international court or tribunal during their term of office”.

The Assembly underscored that the indictment of the Kenyan President and Vice President is the first time a sitting Head of State and his deputy is being tried in an international court, and stressed the “gravity of such a situation, which could undermine the country’s sovereignty, stability, and peace”. While recognizing the critical role Kenya is playing in the fight against terrorism, the Assembly noted that the proceedings against the President and his Deputy will distract and prevent them from fulfilling their constitutional responsibilities, including national and regional security affairs.

At their meeting today, the Heads of State and Government reiterated their unflinching commitment to fight impunity, promote human rights and democracy, and the rule of law and good governance on the continent. The Assembly noted that it was the AU which, following the 2007 post-election violence in Kenya, initiated a mediation process that led to the enactment of the National Accord and Reconciliation Act and the agreement establishing the coalition government. It also noted that the AU is in the process of expanding the mandate of the African Court of Justice and Human Rights (AfCHPR) to try international crimes such as genocide, crimes against humanity and war crimes.

African Heads of State and Government have, in the past deliberated on this issue on a number of occasions and adopted several decisions calling for a fair treatment of Africa and Africans.

“On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations. While similar requests (for deferral of prosecution) by other entities were positively received, even under very controversial circumstances, neither the ICC nor the UNSC have heeded the repeated requests that we have made on a number of cases relating to Africa over the last seven years”, Ethiopian Prime Minister who is the Chairperson of the African Union said in a statement to his colleagues today. “Our goal is not and should not be a crusade against the ICC, but a solemn call for the organization to take Africa’s concerns seriously”, he added.

AU Commission Chairperson Dr Nkosazana Dlamini Zuma also endorsed this point; “It is critical that we remain within the legal framework of the Rome Statutes”, she told the Assembly. Both statements helped to quash rumours that had been circulating that the Assembly meeting had been planned to prepare for a mass withdrawal of African Union member states from the ICC. 34 member states of the AU are members of the ICC.

The Commission Chairperson also said throughout this difficult period, Kenya has, in word and deed expressed its willingness to cooperate with the International Criminal Court (ICC). She highlighted that the country had made progress in transforming its police and judiciary, promoting peaceful resolution of conflicts among local communities and introduced a new constitution that allows for greater inclusion in the context of Kenya’s diversity. In addition, work is ongoing on investigations and prosecutions of the 2007- 2008 post-election violence and on resettling the thousands of Kenyans displaced by the violence. “We would therefore like the UN Security Council and the ICC to work with us to ensure that the process of stability, reconciliation, security and peace in Kenya is consolidated”, the AUC Chairperson said.

The Assembly also adopted a declaration on Africa’s solidarity with and support to Libya; a declaration of solidarity with the Republic of Kenya following the terrorist Al Shabaab attack on the Westgate Mall in Nairobi, Kenya and a declaration on the Lampedusa tragic boat incident.

The full document of decisions from the extra ordinary summit is available at www.au.int