Updated Tuesday, October 7th 2014
The decision issued on October 12, 2013, by the African Union (AU) extraordinary summit to stop prosecution of a sitting head of state and government officials did not change the obligation of African member states of ICC under the Rome Statute, a university don has said.
According to Gitile Naituli, a professor of management and leadership at Multimedia University, by virtue of Article 27 of the statute, all African state parties consensually accepted the jurisdiction of ICC to prosecute heads of state and government.
"This can be reversed only through a process of amendment of the Rome Statute. As the making of the Rome Statute was not an easy exercise, neither would its revision be an easy affair. Indeed, it would be a very taxing process," he said.
As such, in legal terms, ending current cases or ensuring that a new trial would not be launched by ICC is a long-term ambition, if it ever happens, added Prof Naituli.
"In the meantime, the AU summit decision did not change the obligation of African member states of ICC under the Rome Statute," said the don.
Naituli added that the implication of this to President Kenyatta and his deputy was that they remained bound by the existing rules of the ICC.
"The fact that the current rules of ICC stand despite the decision of the AU Assembly is significant," he said.
Popular will
Soon after President Kenyatta and his deputy ascended to power in March 2013, a clear case of tension between popular sovereignty of the people of Kenya through the ballot and the demand for international justice surfaced.
As was expected, the issue automatically become an agenda of the AU when President Kenyatta attended, for the first time as President of Kenya, the assembly summit in May 2013.
The outcome of the summit was a decision with a number of elements.
To begin with, the member states decided to circumscribe the jurisdiction of the ICC. According to the decision of the summit, "no charges shall be commenced or continued before any international court or tribunal against any serving AU head of state or government or anybody acting or entitled to act in such capacity during their term of office."
More specifically, the AU summit demanded that the trials of President Kenyatta and his Deputy Ruto be suspended until they complete their terms of office.
In addition, the decision outlined other measures, including the fast tracking of the establishment of the criminal jurisdiction of the African Court on Human and Peoples' Rights, and the tabling for discussion to the Assembly of State Parties of the ICC amendments to the ICC, including immunity of heads of state and government.
As such, in legal terms, ending current cases or ensuring that a new trial would not be launched by ICC is a long-term ambition, if it ever happens, added Prof Naituli.
"In the meantime, the AU summit decision did not change the obligation of African member states of ICC under the Rome Statute," said the don.
Naituli added that the implication of this to President Kenyatta and his deputy was that they remained bound by the existing rules of the ICC.
"The fact that the current rules of ICC stand despite the decision of the AU Assembly is significant," he said.
Popular will
Soon after President Kenyatta and his deputy ascended to power in March 2013, a clear case of tension between popular sovereignty of the people of Kenya through the ballot and the demand for international justice surfaced.
As was expected, the issue automatically become an agenda of the AU when President Kenyatta attended, for the first time as President of Kenya, the assembly summit in May 2013.
The outcome of the summit was a decision with a number of elements.
To begin with, the member states decided to circumscribe the jurisdiction of the ICC. According to the decision of the summit, "no charges shall be commenced or continued before any international court or tribunal against any serving AU head of state or government or anybody acting or entitled to act in such capacity during their term of office."
More specifically, the AU summit demanded that the trials of President Kenyatta and his Deputy Ruto be suspended until they complete their terms of office.
In addition, the decision outlined other measures, including the fast tracking of the establishment of the criminal jurisdiction of the African Court on Human and Peoples' Rights, and the tabling for discussion to the Assembly of State Parties of the ICC amendments to the ICC, including immunity of heads of state and government.
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