STATES Parties to the Rome Statute may not, despite Kenya’s requests, discuss the government’s radical proposals to grant immunity to sitting heads of states at the upcoming assembly in New York.
Instead, the Assembly of States Parties (ASP) working group on amendments has decided to give priority to changes that “will improve the functions of the International Criminal Court”.
The details emerged in a letter to representatives of member states and a section of civil society inviting them to an informal consultation on Wednesday next week in New York, ahead of the 13th Session of the ASP in December.
“The working group on amendments has agreed to focus its attention first and foremost on proposals to improve the functioning of the Court,” the letter said. “If time permits, we will continue our deliberations on (already submitted) proposals for amendments to the Rome Statute and listen to any delegation that wishes to present its views”.
Part of the changes the working group wants expedited include amendments to the ICC rules of procedure which, if endorsed, could allow the temporary absence of one of the judges in the three-judge bench during trial.
The revelations that the Kenyan proposals have yet to be considered by the working group make it unlikely that they will make it to the agenda of the ASP’s week-long meeting scheduled for 8-17 December.
Kenya is proposing to amend the statute to explicitly state that sitting presidents and their deputies “may be exempt from prosecution during their current term of office”.
Kenya is also seeking changes to the section of the statute that covers offences against the administration of justice. It wants a clause added that would explicitly include the Office of the Prosecutor itself among those that can be held accountable for such an offence.
It has also asked for regional courts to be recognised under the Rome Statute as bodies that can potentially handle cases which would otherwise be tried by the ICC.
Under a process known as “positive complementarity”, the statute currently provides for national courts, but not regional ones, to take on such cases from the court.
On October 16, Kenya wrote to the ASP requesting for the inclusion of another supplementary agenda item during the meeting. The item is related to what Kenya terms gross violation of the Rome Statute by the ICC in the prosecution of the twin Kenyan cases.
“The Republic of Kenya proposes that this item, with an important and urgent character, be discussed by the ASP with a view to proposing immediate remedial solutions,” the letter written by Kenya’s Representative to the United Nations Macharia Kamau said.