Anybody who cares about justice, rule of law and democracy will be very worried to know African dictatorship walked away with crucial concessions from the Assembly of State Parties in The Hague.
To victims of African tyranny, ICC was conceived not as a defender of African dictators but as the ultimate protector of justice, freedom and victims of war crimes, crimes against humanity and genocide.
It was shocking therefore to see Parliament of ICC making laws to accommodate Kenya’s President and his deputy instead of collective good. If making laws for leaders rather than people was the rule during one party dictatorship, how could ASP do exactly the same today in the full glare of the world?
Unbelievably, an incredible amendment to rules of procedure was made at the conference of ASP to the exclusive benefit of Kenyan President and his deputy and detriment of Joshua Sang, a common Kenyan accused with the duo. Subsequently, Kenyan President and his deputy will not personally attend trial. They will be substituted by their lawyers and video-link.
Consequences of this amendment if not challenged as a violation of Rome Statute that requires every accused person to attend trial in person will be varied and grave if granted by the trial court.
To begin with, the principle of natural law that all accused are equal before law irrespective of their status out of court will be negated to the benefit of leaders and detriment of common people.
Secondly, the sanctity of Rome Statute that is the constitution of the ICC and demands that all accused persons shall attend trial in person will be violated and greatly lessened.
Thirdly, since all judges are human, if this amendment is implemented,ICC will be intimidated and may not again dare to convict a head of state.
Fourthly, meant as a court beyond political interference and a curb on impunity of power, ICC will now become a court for dictators to punish little persons who rebel against them.
To escape ICC, Kenya has filed an amendment to the Rome Statute to grant sitting heads of state immunity against prosecution. If passed, this amendment will mean African leaders will be above the law and beyond prosecution for any crimes against humanity they commit.
If sitting heads of state come to enjoy immunity against prosecution, for fear of trial, they will stay in power until they die to guarantee their protection against prosecution.
One can also predictably say, if the Rome Statute is changed to grant immunity against prosecution, sitting heads of state whose countries’ constitutions allow for their prosecution will embark on a process of removing offending sections of their constitutions. By seeking immunity against prosecution of heads of state, Kenya nleaders are using ASP to reverse a major gain of democracy by holding their leaders accountable.
To the disappointment of many, even a cursory look at what happened at the conference of ASP reveals that some Western countries like Britain allowed Kenya and AU to corrupt them in protection of their economic and military interests. This means that, as in the era of one party dictatorship, some western powers will sacrifice freedom and justice in Africa at the alter of their interests.
Clearly, through amendments, ASP wants to corrupt and compromise ICC. If ASP grants immunity to heads of state, AU will corrupt African democratic constitutions to conform to the amended Rome Statute. African dictators could even amend their constitution before the Rome Statute is amended. Either way, one will lead to the other.
Tragically, if ICC does not resist amendments, it will have taken a step closer to its own suicide. African leaders have killed their home courts. Now they want to kill ICC.
What is the inevitable impact of the rules’ amendments?
One, unless courts stand by the sanctity of the Rome Statute, leaders will be tried in absentia, only little fellows will attend trial and equality before law will die.
Two, African leaders will launch a movement to annihilate democracy in Africa by amending home constitutions to grant them immunity from persecution.
Three, ICC will fear to convict heads of state, become toothless and ultimately die.
Four, unable to reign in dictators and protect people against dictators, people themselves might push for dissolution of ICC as a court that will be useless to them.
Five, to protect Kenyan leadership, ASP has attacked ICC viciously. But while dictators attack ICC, no politicians are defending it. If lovers of justice do not speak for ICC, when people will be attacked, there will be no ICC to protect them.
Six, in Africa, dictatorship is on the march. It wants to cripple ICC. Without ICC, it will steal elections. It will emasculate Judiciary. It will gag the media. It will kill NGOs. It will scuttle opposition parties. It will amend constitutions to make them pliant and toothless.
When Kagame, using the excuse of being too busy, passed chairmanship of East African Community to Uhuru who will be even busier attending trial, East African leaders were giving Uhuru more ammunition to fight. More work for excusals. More people giving him support and a status too big for ICC to convict!
If African leaders win the Kenyan case, it will be time for dictatorship to consolidate in Kenya, East Africa and Africa. How sad.
“The price of freedom is eternal vigilance.”