From: Ouko joachim omolo
The News Dispatch with Omolo Beste
MONDAY, OCTOBER 14, 2013
Regina from Busia, Kenya writes: “Father Beste what is your take on resolutions by the African Union that President Uhuru Kenyatta and his Deputy William Ruto should not appear before ICC because no charges should be commenced or continued before any international court or tribunal against any serving Head of State or Government or anybody acting or entitled to act in such capacity during their term of office?”
Thank you Regina for this important question- I am sure where President Uhuru Kenyatta is now he is increasingly under pressure to skip his November 12 trial for crimes against humanity at the ICC because he knows very well that Article 27 of Rome Statute on irrelevance of official capacity does not favour anybody.
The article states:
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. 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.
Against the background that renowned human rights lawyer and former Imenti Central Member of Parliament, Gitobu Imanyara, has cautioned President Uhuru Kenyatta to trade carefully with the African Union (AU), because they are misleading him and would land Kenya in a ditch.
On his Twitter account, Imanyara advised President Uhuru Kenyatta not to heed to the AU advice to snub his trials at The Hague, saying it is the Kenyan people who will suffer if he fails to show up at the International Criminal Court (ICC).
The AU head of States, most of whom should even be at The Hague right now on charges of economic and war crimes are now using force that Uhuru and Ruto should boycott ICC hearings because their first attempt to ask the ICC security council to defer their cases in Kenya or Arusha, Tanzania was rejected.
Some of these African head of States who have been rigging their elections to impose their dictatorial leadership and harvest where they have not sown have even threatened to withdraw from the Rome Statute.
The Kenyan parliament voted on 5 September 2013 to back a call for government to withdraw from the Rome Statute of the International Criminal Court (ICC), thinking this would automatically bar Uhuru and Ruto from attending the ICC cases.
This action by Kenya was a first step in an effort to mobilise other African countries that are states parties to the Rome Statute to follow suite and withdraw from the ICC.
The challenge here is that, according to the Rome Statute, a withdrawal can only take effect after one year after receipt of notification. It further provides that a ‘State shall not be discharged by reason of withdrawal from its obligations arising from while it was a Party.
This means that the ICC is compelled to continue the cases against Kenyatta and Ruto, despite Kenya’s withdrawal.
It also means that if Kenyatta and Ruto fail to cooperate, the ICC will have to issue a warrant of arrest against them. All ICC member states, including those that may chose to withdraw from the Rome Statute, will still be legally obliged to cooperate with the court on the Kenyatta and Ruto cases.
It explains why Kenyatta should plan his next move with care. In other words, Kenyatta should continue to cooperate with the ICC. Furthermore Kenya must remain in the Rome Statute because it is the only trust Kenyans have in ending impunity and further abuses.
Fr Joachim Omolo Ouko, AJ
Tel +254 7350 14559/+254 722 623 578
E-mail omolo.ouko@gmail.com
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Real change must come from ordinary people who refuse to be taken hostage by the weapons of politicians in the face of inequality, racism and oppression, but march together towards a clear and unambiguous goal.
-Anne Montgomery, RSCJ
UN Disarmament
Conference, 2002