Kenya still seeks fundamental treaty changes

The collapse of the case against President Uhuru Kenyatta will not dissuade Kenya from pushing for fundamental changes in the treaty that established the International Criminal Court.

Ahead of the Assembly of State Parties meeting Sunday, Kenya’s ambassador to the United Nations Macharia Kamau told the Sunday Nation in New York that the “protestations have always been on principles”.

“The court and particularly the manner of prosecution is flawed, and the Kenya cases are only the proof of it,” he said.

Separately, Mr Kamau has written to the UN Permanent Missions and the Permanent Observer Missions expressing regret at the tone of the ICC withdrawal notice released on Friday.

He said the tone remains “prejudicial to the person of the defendant” and casts aspersions on the government.

“Kenya regrets the lack of dignity and humility in that statement,” the letter dated December 5 reads in part.

He also called on the ICC to expeditiously conclude the case against Deputy President William Ruto “as this will go a long way in facilitating normalcy in our country and securing our democracy and long term peace and security”.


The proposed amendments to the treaty are set to be discussed during the annual meeting of ICC member states which is taking place at United Nations headquarters in New York from December 8-17.

The Sunday Nation has also learnt that Kenya has obtained accreditation for 22 official delegates, likely to be the largest delegation from a single country.

A number of civil society organisations have also been accredited specifically to support the government cause during the Assembly.

The most significant change sought by Kenya is to rewrite Article 27 of the treaty, which is known as the Rome Statute.

It currently stipulates that no one, including a sitting head of state and high-ranking government officials, will be immune from ICC prosecution by virtue of the office that a person holds.

Kenya’s proposed amendment would not shield heads of states from prosecutions for crimes they allegedly committed while holding office.

But it would require the ICC to defer an indictment of an incumbent national leader for acts carried out prior to his or her democratic election. The Kenyan proposal adds that a prosecution could be brought under those circumstances once a leader leaves office.

The aim of the proposed amendment, Mr Kamau said, was to prevent “political shenanigans” on the part of “opponents or detractors” of a president.

This suggested change to the ICC treaty would ensure that the court could not be used as an instrument to hobble a head of state who has not been accused of wrongdoing while in office.


Human rights organisations, along with many ICC member states, are sure to oppose such a change in the Rome Statute.

“This amendment is highly problematic,” declares a position paper prepared by the International Federation of Human Rights, a grouping of 178 NGOs.

“It constitutes an exception to a fundamental principle of international law: all individuals are equal before the law and no-one can avail themselves of any prerogative to commit serious crimes or avoid prosecution for commission of such crimes (even if temporarily).”

Kenya’s proposed change in Article 27 “would also create a situation whereby persons who have committed crimes would seek to hold official duties in order to avoid prosecution,” the federation adds.

“Those who have committed serious crimes may seek to remain in power at all costs in order to avoid prosecution. They may do so, including by changing the Constitution so that they can be re-elected indefinitely [or through] fraud in elections or corruption.”

The suggested amendment, as well as others being offered by Kenya and two other African countries, is unlikely to be adopted at the nine-day meeting of the Assembly of State Parties, the body comprising the 122 countries that have ratified the Rome Statute.

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