No Immunity For President Uhuru Kenyatta

‘There is no immunity for International Crimes at the ICC. The judicial calendar at the court will not be altered. The ICC judges are not bound by any political processes’ those were the words of Fatou Bensouda when she visited Kenya last year. She was not only coming to Kenya to assess the magnitude of the post election violence but also to underscore the seriousness of The Hague based ICC.

Uhuru Kenyatta in the ICC pre-trial Chamber II

Today we are in the future of what many had predicted, the aftermath of the March 4 general election that saw the two ICC Visitors elevation to the country’s number one and two jobs. With the presidency of Uhuru Kenyatta 5 days away, what does the law has to say about their status?

Kenyan President enjoys a broad spectrum of immunity by the constitution as outlined by article 143.

Under article 143 (1) the law states, “Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.” 

This means if there exist any unresolved dispute between Uhuru Kenyatta and any other person can not be brought before the judiciary for hearing and therefore one will have to wait for the next 5 years. The second clause provides for immunity against their commission or omission as provided for by the constitution.

‘Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution,’ states the constitution.

The law farther provides for exemptions where the law has existing time-lines to beat. It states under clause 3, ‘Where provision is made in law limiting the time within which proceedings under clause (1) or (2) may be brought against a person, a period of time during which the person holds or performs the functions of the office of the President shall not be taken into account in calculating the period of time prescribed by that law.’

However, Uhuru Kenyatta may not enjoy the same immunity if he is tried outside the Kenyan soil and that explains why the ICC has been insisting that the President-Elect appear in person in The Hague International Criminal Court. The fourth clause states that ‘The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.’

Owing to the fact that the Kenyan cases at International Criminal Court have been said to be the most challenging due to the massive withdrawal of key witnesses, Kenyatta still holds that his case should be returned to the pretrial chamber II after the withdrawal of the star witness number four who played a huge role in the confirmation of the charges against the President Elect. While in Kenya Bensouda also said witnesses in the case were being intimidated and that would affect the cases before the International criminal court.

"A climate of fear is being created for the witnesses not to come forward to give evidence, those who attempt to intimidate the witnesses will face justice," said the ICC prosecutor.

During the Pre-Trial conference the defense of Uhuru Kenyatta and Former Head of Civil Service Ambassador Francis Muthaura accused the office of the prosecutor of International criminal court for tempering with the witnesses and therefore requested the trial date to be deferred from the April 10 and 11 to allow them re examine their defense. The demands were granted by the court as the trial of William Ruto and that of Uhuru Kenyatta were moved to May and July respectively to grant the defense more time to familiarize with the new evidence before them.

In the first session which involved Uhuru Kenyatta and Francis Muthaura and the second session will involve William Ruto and Radio Journalist Joshua Sang before. The presiding judge of Trial Chamber V was Kuniko Ozaki with other judges include Christine Van den Wyngaert and Chile Eboe Osuji.

It would be noted that the last conference Uhuru Kenyatta and William Ruto attended via Video link while the other two suspects attended the conference in person. 

Due to the withdrawal of the star witness number four who played a role in the confirmation of charges against Muthaura the prosecutor dropped the charges against Muthaura and remained with the case of Uhuru Kenyatta. Muthaura’s lawyer Karim Khan had argued that the office of the prosecutor was dragging the case despite his client willingness of having trials earlier. He farther said that for justice to be served to his client, the office of the prosecutor should disclose the evidence in order to have fair trials.

The defense had earlier said that the OTP had introduced about 68% evidence hence mutating the case.

Kenyatta’s lawyer Steve Kay commented on the latest development of witness withdrawal saying that ‘Some witnesses are relying on hearsay or were not there at the said events. They are lying.’

Gillian Higgins Kenyatta’s second lawyer had said some of the information in the prosecutor’s document has been changed saying they farther complicate the case.

“The club allegations dates have also been changed from specific to unspecific. The Nairobi Club allegations that were connected to the dropped witness 4 by the prosecution have significantly been altered,” said Higgins. 

Higgins farther said the Prosecution served 77 scripts of evidence which is a great shortfall of over 1,000 pages available. 

“The prosecution has served the same material with lesser deductions. The true nature of the case we face still remains unknown to the defence teams. The prosecution has not provided the number of hours for submissions post confirmation,” argued Higgins.

Other matters include the chambers where the presiding judge said that the Kenyan cases shall be heard in court 1 and each case shall be allocated 4 hours. Uhuru Kenyatta’s defense was told to apply for their client to attend the trials by latest 28th February. However, the office of prosecutor has opposed to the demands by the two ICC suspects to have their cases heard via video link saying the Rome Statute provides for the suspects to appear in person. 

During the Pre-Trial conference the host country [Netherlands] said it was prepared to host the suspects for 12 months. Despite Kenyans making their outspoken decision of having the two suspects elected as President and Deputy President their fate now lies with the ICC to grant them their application to attend the hearing via Video Links or if denied the Senate confidence in them not to impeach them if they find them not capacitated to operate from the Hague Based international Criminal Court.