Reflections on the Indictment of Sitting Heads of State and Government and Its Consequences for Peace and Stability and Reconciliation in Africa

Abstract

In these remarks, the author considers the most recent challenge to the application of international criminal justice in Africa: Kenya's controversial November 2013 proposal to amend the Rome Statute of the International Criminal Court to temporarily exempt from prosecution sitting presidents accused of involvement with international crimes. He examines several legal and practical reasons why such a proposal is untenable. Instead, citing the principle of complementarity and urging the principled use of judicial and prosecutorial discretion, he contends that much of the African Union's current concerns about the Kenya Situation can be addressed within the confines of existing Rome Law. This is important because, even if it is possible for African countries to secure amendments to the Rules of Procedure and Evidence, African States Parties are unlikely able to secure the global consensus required to effect substantive amendments to the 1998 treaty. On the other hand, the author suggests that the International Criminal Court officials, especially the judges and the chief prosecutor, can help bridge the apparent gap between the Court and its African supporters. Towards that end, they should consider taking a more flexible and more nuanced approach to their interpretations and application of several important provisions contained in their founding statute. Eschewing a one-size fits all approach, it is submitted that each African situation is unique - both in the scope of the problem, and in the solution required in the necessary fight against impunity in Africa.