PARTNERS: President Uhuru with Sheikh Sabah Al-Ahmed Al-Sabah on arrival in Kuwait for the Arab-Africa Summit.
ANY
amendments to the Rome Statute at the ICC Assembly of State Parties
this week may not come in time to help President Uhuru Kenyatta and
Deputy William Ruto. They may take years to come into effect.
The key amendments being sought by Kenya are to allow leaders to attend trial by video link from their home countries and to provide immunity to sitting presidents.
However all amendments have to first be ratified by 87.5 percent of the 122 member states of the International Criminal Court.The amendments will then only come into effect one year after the 106 countries deposit their ratification instruments, according to the Rome Statute.
“An amendment shall enter into force for all states parties one year after instruments of ratification or acceptance have been deposited with the Secretary General of the UN by seven-eighths of them,” Article 121(4) of the statute states.
Ratification process can be quite slow. For example, Kenya signed the Rome Statute in August 1999 but ratified it six years later in March 2005.
Deputy President William Ruto's trial at The Hague is already underway while President Uhuru Kenyatta's is due to start on February 5.Kenya is proposing five amendments to the Rome Statute.
On November 4, Kenya's permanent representative to the UN, Macharia Kamau, wrote a “very urgent” letter to ICC issuing notice to amend Article 63(1) and Rule 134 of the Rules of Procedure and Evidence. Article 63 says the accused shall be present at trial. Kenya wants it amended to allow excusal from continuous attendance.
On November 7, Kenya's deputy permanent representative to the UN, Koki Muli-Grigon, wrote to the ICC advising of four other requested amendments.
The four deal with Article 27 to provide immunity for sitting presidents and Article 70 to allow for anyone, including the prosecutor, to be charged with offences against administration of justice.
The other two refer to Article 122 on the oversight of the prosecutor and on the preamble to capture complementarity at regional level.
“Kenya considers that these proposals aim to improve the effective and efficient functioning of the court and therefore requests that the assembly takes them up,” Muli wrote.
However the ICC has complained about the haste with which the amendments have been introduced ahead of Wednesday's Assembly of State Parties meeting. Technically amendments to the Rome Statute require three months notice which has not happened in the Kenyan case.
ICC First Vice President Sanji Mmasenono Monageng has recently complained that some proposed amendments are being submitted too late to undergo the necessary scrutiny.
On November 1 Botswana, Jordan and Liechtenstein sent a proposal for video link attendance through the current chair of Assembly's Study Group on Governance, Swedish ambassador Hakan Emsgard, on November 1. Judge Monageng received it as chair of the ICC's Working Group on Lessons Learned.
“The proposal has been communicated to the court on an urgent basis. Therefore, the court has not been able to engage in the regular consultation process for proposed amendments,” Monageng replied on November 4.
He said amendments should normally undergo “rigorous and thorough review” using a road-map agreed at the Assembly of State Parties last November. “In light of the above, I am only in position to convey a preliminary analysis of the proposal,” Monageng said.
Monageng reminded those pushing for amendments that Article 51(5) of the Rome Statute that the statute will prevail if there is a conflict over the rules.He noted that Article 63 says “the accused shall be present during the trial”.
He complained that the draft proposal appeared to contradict the recent decision of the ICC Appeals Chamber by talking of excusal “for entirety of the trial.” He said the Appeals Chamber had emphasised that absence must be limited to “that which is strictly necessary.”
He also criticised the drafters for specifically focusing on video link and ignoring other options offered by the Appeal Chambers such as short adjournments or changes in trial schedules.
“In light of the aforementioned points, the amendment proposal as it currently stands raises concerns as to its conformity with Article 63(1) of the Rome Statute,” he concluded.
The UK has since proposed a milder version of the Botswana proposal. “In accordance with article 63, paragraph 1, and after hearing participants and registry, a chamber may allow the accused to be present by means of video technology for part or parts of the trial,” the UK permanent representative to the UN, Mark Lyall Grant, suggested on November 8.
Yesterday, Foreign Affairs Secretary Amina Mohamed confirmed that the African Union will push for immunity of sitting heads of state.
“We are going to the State Parties meeting at The Hague. We will present the AU proposal for amendment of the Rome statute and are optimistic of a positive consideration,” she said. She said the AU is confident of getting the two-thirds majority needed for the amendment to succeed.
The key amendments being sought by Kenya are to allow leaders to attend trial by video link from their home countries and to provide immunity to sitting presidents.
However all amendments have to first be ratified by 87.5 percent of the 122 member states of the International Criminal Court.The amendments will then only come into effect one year after the 106 countries deposit their ratification instruments, according to the Rome Statute.
“An amendment shall enter into force for all states parties one year after instruments of ratification or acceptance have been deposited with the Secretary General of the UN by seven-eighths of them,” Article 121(4) of the statute states.
Ratification process can be quite slow. For example, Kenya signed the Rome Statute in August 1999 but ratified it six years later in March 2005.
Deputy President William Ruto's trial at The Hague is already underway while President Uhuru Kenyatta's is due to start on February 5.Kenya is proposing five amendments to the Rome Statute.
On November 4, Kenya's permanent representative to the UN, Macharia Kamau, wrote a “very urgent” letter to ICC issuing notice to amend Article 63(1) and Rule 134 of the Rules of Procedure and Evidence. Article 63 says the accused shall be present at trial. Kenya wants it amended to allow excusal from continuous attendance.
On November 7, Kenya's deputy permanent representative to the UN, Koki Muli-Grigon, wrote to the ICC advising of four other requested amendments.
The four deal with Article 27 to provide immunity for sitting presidents and Article 70 to allow for anyone, including the prosecutor, to be charged with offences against administration of justice.
The other two refer to Article 122 on the oversight of the prosecutor and on the preamble to capture complementarity at regional level.
“Kenya considers that these proposals aim to improve the effective and efficient functioning of the court and therefore requests that the assembly takes them up,” Muli wrote.
However the ICC has complained about the haste with which the amendments have been introduced ahead of Wednesday's Assembly of State Parties meeting. Technically amendments to the Rome Statute require three months notice which has not happened in the Kenyan case.
ICC First Vice President Sanji Mmasenono Monageng has recently complained that some proposed amendments are being submitted too late to undergo the necessary scrutiny.
On November 1 Botswana, Jordan and Liechtenstein sent a proposal for video link attendance through the current chair of Assembly's Study Group on Governance, Swedish ambassador Hakan Emsgard, on November 1. Judge Monageng received it as chair of the ICC's Working Group on Lessons Learned.
“The proposal has been communicated to the court on an urgent basis. Therefore, the court has not been able to engage in the regular consultation process for proposed amendments,” Monageng replied on November 4.
He said amendments should normally undergo “rigorous and thorough review” using a road-map agreed at the Assembly of State Parties last November. “In light of the above, I am only in position to convey a preliminary analysis of the proposal,” Monageng said.
Monageng reminded those pushing for amendments that Article 51(5) of the Rome Statute that the statute will prevail if there is a conflict over the rules.He noted that Article 63 says “the accused shall be present during the trial”.
He complained that the draft proposal appeared to contradict the recent decision of the ICC Appeals Chamber by talking of excusal “for entirety of the trial.” He said the Appeals Chamber had emphasised that absence must be limited to “that which is strictly necessary.”
He also criticised the drafters for specifically focusing on video link and ignoring other options offered by the Appeal Chambers such as short adjournments or changes in trial schedules.
“In light of the aforementioned points, the amendment proposal as it currently stands raises concerns as to its conformity with Article 63(1) of the Rome Statute,” he concluded.
The UK has since proposed a milder version of the Botswana proposal. “In accordance with article 63, paragraph 1, and after hearing participants and registry, a chamber may allow the accused to be present by means of video technology for part or parts of the trial,” the UK permanent representative to the UN, Mark Lyall Grant, suggested on November 8.
Yesterday, Foreign Affairs Secretary Amina Mohamed confirmed that the African Union will push for immunity of sitting heads of state.
“We are going to the State Parties meeting at The Hague. We will present the AU proposal for amendment of the Rome statute and are optimistic of a positive consideration,” she said. She said the AU is confident of getting the two-thirds majority needed for the amendment to succeed.
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