The Hague — Kenya's Attorney General told a Hague conference this week that the International Criminal Court (ICC) was undermining his country's security, and that it should grant legal immunity to heads of state as long as they were in office.
Attorney General Githu Muigai was addressing a special debate held to discuss the issue of indictments against heads of state and government, and the effect on peace and security.
The event was held as part of the annual meeting of the Assembly of States Party, which brings together the countries are signatories to the ICC's founding treaty, the Rome Statute.
Muigai's remarks followed a vote at the United Nations Security Council which turned down a Kenyan request to postpone the ICCs cases against President Uhuru Kenyatta and Deputy President William Ruto. Kenya had argued that the two leaders needed to focus on maintaining security following the attack on Nairobi's Westgate shopping centre in September.
"We didn't intend that the International Criminal Court was the medicine to be taken by the patient to make them die. It is meant to be the medicine that a patient takes to live," Muigai said.
Kenyatta and Ruto are charged with financing and planning the bloodshed that unfolded after a disputed presidential election in December 2007. More than 1,100 people were killed and 3,500 others injured in political violence which descended into ethnic conflict across the country.
Kenyatta, Ruto were charged alongside a third suspect, journalist Joshua Arap Sang, in December 2010. They were elected in March 2013.
Muigai said that the indictment against Kenyatta threatened the security of 250 million people in Kenya and in the wider region "from Djibouti to the eastern DRC [Democratic Republic of Congo] and everywhere in between".
"The impact of an indictment of a sitting president is serious, particularly on security of the region," he said. "It is not an academic argument that Kenya is the pillar of regional stability in East Africa. That is a fact."
The African Union (AU) issued a resolution last month which said heads of state should not face trial at international courts while they were in office.
Article 27 of the Rome Statute says no one is immune from prosecution at the court.
Kenya and several AU states are seeking to amend the treaty, which has been ratified by 122 states, to provide immunity for sitting heads of state.
Even if it were passed, the amendment would be unlikely to affect the Kenyatta trial, scheduled to start on February 5 next year, as signatory states cannot formally debate such a proposal until three months after it has been tabled. Any agreement would then have to be ratified by 87.5 per cent of ICC member states before being approved by the UN Secretary General. After that, it would take one year to come into effect.
Muigai questioned why, since many national legal systems granted immunity to sitting heads of state, the same privileges could not exist under the Rome Statute.
The attorney general went on to note that the indictment of Kenyatta posed "a unique problem" that needed to be approached in a "unique manner".
He rejected accusations that Kenya had been uncooperative in its dealings with the ICC and pointed out that Kenya had been one of the first countries to sign up to the court.
"There is a tone that we are a reluctant participant and are dragged kicking and screaming [to The Hague]," he said. "We [cooperate] out of our own self-respect and respect for a court of law."
Earlier this week, Kenyan foreign minister Amina Mohamed called on the ICC to recognise the social and political realities of the countries it worked with, and said the court had "treated Kenya with suspicion and contempt".
Human rights groups oppose any moves to shield Kenya's leaders from justice.
Speaking to journalists at the conference, Stephanie Barbour of Amnesty International said exempting heads of state from prosecution would contradict a "central tenet" of the Rome Statute that no one was above the law.
"If such an exemption exists, senior government officials would be able to commit crimes under the jurisdiction of the ICC with impunity while they hold office, and they may seek to hold on to positions of power at any cost," Barbour said.
This view was echoed by a representative of the German delegation, who warned that granting immunity to heads of state could lead presidents to cling on to power to avoid being prosecuted.
But Professor Charles Jalloh of the University of Pittsburgh's law school, who is an expert in ICC-AU relations, told the conference that resolving the problem facing Kenya did not require a change to the Rome Statute provisions that hold heads of state accountable.
He said the statute already included elements that might offer a way forward, such as provisions for the ICC to allow for domestic proceedings to take place.
"For me, it is not a discussion of Article 27," he said "For me, it is about using the existing law to accommodate different solutions."
The Norwegian delegation to the Assembly of States Parties conference said that the provision denying legal immunity could not be amended, but that it was open to finding other solutions, such as defendants attending their trials by means of a video link.
Kenya and other states have also tabled proposals that would amend ICC rules so as to allow Kenyatta and Ruto to remain in Nairobi rather than attend their trials in The Hague.
Namibia this week supported the AU resolution, and praised Kenyatta for spearheading efforts to preserve peace and security in the Horn of Africa following the Nairobi mall attack.
Jordan, Lichtenstein and Botswana tabled a proposal for defendants to be able to follow proceedings remotely via a video link. Britain has put forward a similar proposal.
However, any amendment to the rules that would allow defendants not to attend court in person would contravene a provision in the statute which says they "shall be present at trial".
Amnesty's Barbour called on all states parties not to consider what she called "backdoor amendments" to the rules on defendants being present at trial.
"Any amendments to the rules must be consistent with the Rome Statute," she said.
JJ Wangui is an IWPR reporter in Nairobi.