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Archive for the tag “Immunity”

Rep. Green’s Draft Amendment on the Presidential Pardon: A good unnecessary deed!

On the 25th of July 2017, the now Texas Democratic Party Representative Al Green has written a resolution to clarify and secure none obstacle and secure the laws of the land. Since, there is clearly a dispute going-on, if the President can pardon himself from self-conflicting crimes. Even if there been studies of this in past, like in the 1970s and 1990s when it came to both Richard Nixon and Bill Clinton, therefore, Trump should not be different from any of them.

The Draft Resolution is very specific and rare. It would be an amendment to the Constitution for the simple matter of the authority and legislative branch of the Presidential Office. In simple terms, this is what he wants to be added as law:

“The President shall not have no power to grant himself a reprieve or pardon for an offence against the United States”.

It is so powerful, even as the codes and the discussion around it shows it would be self-inflicting wounds if he would dare to pardon himself or anyone around him. That being family-members, associates and political allies. So, President Trump. Must feel the heat, as even Representatives will try to add on the constitution to secure that he will no code or law, that his lawyers can twist in his favor. Even if the past cases that has stated the fact and proven that he cannot do so. Since, the law clearly are addressing the functions of the office and if the President happen to do criminal activity previously to being elected into office.

This sort of amendment seems more of a precaution if someone more criminal and sinister are elected into office. However, this sort of idea would not have come under Barrack Obama, One of Bushes and even Jimmy Carter for that matter. This just proves the liability Trump is and are for the Republic. That their own representatives see the need to amend the constitution. So that the President cannot question his powers.

Since that is something, he is up to and that Representatives are clearly following up now. President Trump is only proving his guilt and that the deed is done, if he starts pardoning himself or others. Then, you know by his acts that he is a crook. Since he had to use the state to forge himself and by the seal of office. In addition, it should not be necessary, since the investigations are just beginning and the digging are just revealing more and more every single day.

But the documents of Marcy C. Lawton of 1974 should be clear enough, though not as direct and clear for a President of Trump preempted mind. Who stated on the 5th August 1974:

“Presidential or Legislative Pardon of the President: Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself. If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President” (Lawton, 1974).

If that is too deep for the President to understand. Then, some of his advisers or the Mooch should explain the matter to him. The constitution should not need a new amendment in this case, because the powers are already clear. However, to bury a body twice sometimes helps the criminals to understand that the victim is already dead. Peace.

Pardon me Trump, you are not above the law Part II

I have to continue since you are so persistent in your belief that you are greater and grander than the law. It should be insulting the American people and the Constitution to have such a President like you Trump. Who has the audacity to put himself on the pedestal and think he could do anything to anyone and then get away it with it. It is insulting and beneath the office and beneath the possible position your are holding at the moment. Donald J. Trump, you act like thief and act like disgrace in the White House. If you we’re innocent and your family we’re the same? Why need to be pardoned. If the Trump Campaign and the Trump Organization was clean of guilt, why need the pardon? Do you think the American people are that ignorant and stupid, to not see this. The whole world see it and how you are eaten inside by the guilt of your association and use of Russian questionable financial transaction to keep yourself afloat.

Because of this and your continues allegations and attacks on peers. Your misuse of power and your wish to undermine the American democracy and institutions. It is time to again. Go back in time, last time it was the advice Richard Nixon asked for days before his impeachment for obstruction against justice. The same sort of acts President Trump is currently doing and undermining the law as much as he can. Therefore I have to go back to a document based in 1998, when Law Professor Rotunda are writing to Judge Kenneth Starr on indictment. This was on the matter of then President Bill Clinton. But worth noting certain fragments of document to show the capacity President Trump has under current legislation. Not that he understands it, unless it 140 words or explained to him on ‘Fox and Friends’. Still, worth noting though!

For Example, if the President in a moment of passion slugs an irritating heckler, he has committed a criminal battery. But no one would suggest that the President should be removed from office simply because of an assault. Yet the President has no right to assault hecklers. If there is no recourse against the President, if he cannot be prosecuted for violating the criminal laws, he will be above the law. Clinton vs. Jones rejected such an immunity; instead, it emphatically agreed with the Eight Circuit that: “the President, like other officials, is subject to the same laws that apply to all citizens”. The “rational for official immunity is inapposite where only personal, private conduct by a President is a issue”. The President has no immunity in such a case. If the Constitution prevents the President from being indicted for violations of one or more federal crime statutes, even if those statutory violations are not impeachable offences, then the Constitution authorizes the President to be above the law. But the Constitution creates an Executive Branch with the President under sworn obligation to faithfully executive the law. The Constitution does not create an absolute Monarch above the law” (Rotunda, P: 5, 1998).

As Nixon vs. Sirica carefully noted: “Because impeachment is available against all ‘civil officers of the United States’ not merely against the President, it is difficult to understand how many immunites peculiar to the President can emanate by implication from the fact of impeachability”. Moreover, it would be anomalous and aberrant to interpret the Impeachment Clause to immunize the President for alleged criminal acts, some which occurred prior to the time he assumed the Presidency and all far removed from any of the President’s enumerated duties: witness tampering, destruction of documents, subornation of perjury perjury, illegal pay-offs” (Rotunda, P: 7, 1998).

Later, in Clinton v. Jones, the Court rejected any notion of Presidential immunity (even a temporary immunity) for the President who is sued by a private civil litigant for damages involving acts not within his Presidential duties. In that case, President Clinton’s “strongest argument” supporting his claim for immunity on a temporary basis, the Court said, was the claim that the President occupies a “unique office” and burdening him with litigation would violate the constitutional separation of powers and unduly interfere with the President’s performance of his official duties” (Rotunda, P: 36, 1998).

These factors all buttress and lead to the same conclusion: it is proper, constitutional, and legal for a federal grand jury to indict a sitting President for serious criminal acts that are not part of, and are contrary to, the President’s official duties. In this country, no one, even President Clinton, is above the law” (Rotunda, P: 55, 1998).

This conclusion does not imply that a President must be required to serve an actual prison term before he leaves office. The defendant President could remain free pending his trial, and the trial court could defer any prison sentence until he leaves office. The defendant-President may petition the courts to exercise its discretion in appropriate cases. It is one thing for the President to petition the court to exercise its discretion; it is quite another for the President to announce that he is above the law and immune from criminal prosecution” (Rotunda, P: 55, 1998).

This letter of Law Professor Rotunda states very clearly the provisions and special place within the Republic the President has and the laws that needs to be extended to prosecute him/her. So with this in mind, no one not even President Clinton was above the law. The same scenario remains today with President Trump. That Nixon tried to find ways to pardon himself is clear, the same does now President Trump.

The possible collusion and collaboration with foreign officials and entities will be more clear as the investigation and drops of information leaks to the press. The more meetings, lack of disclosure from the Trump Organization and the Trump Campaign. The same is it his family and associates, as long as the narrative still exists and there are plot-lines to define. The story will live on and the investigators will look into the possible breaches. The Office of Special Council Robert Mueller has lots of power. Something, President Trump cannot stop. Therefore, Tucker Carlson and others trying to gain leverage and saying the investigation makes everything in Mosciw illegal, like buying cigarettes in Moscow. That show’s the disrespect of a criminal investigation by the Trump Friendly Press like Fox News and Sinclair Media.

While that goes on, the 1998 letter show’s that the President can be prosecuted and is not a person who cannot be put on trial. What is different unless there is a special court and trial, the criminal offenses done before his Presidential Term and his sentencing has to be served after his term. That because of the Executive Branch and the august role of government the President are. Certainly, ironic writing that while describing Trump.

This will be lines from the letter, that says the most for me, because the criminal offenses before the Presidential Term: “it would be anomalous and aberrant to interpret the Impeachment Clause to immunize the President for alleged criminal acts, some which occurred prior to the time he assumed the Presidency and all far removed from any of the President’s enumerated duties: witness tampering, destruction of documents, subornation of perjury perjury, illegal pay-offs” (Rotunda, 1998).

So obstruction of justice, which is witness tampering and destruction of documents are likely things that people knows Trump has done or wanting to do. That is why Special Investigator Mueller has asked the government and White House to keep their documents relating to Russian affairs and the known meetings with Russians. So the investigation looks into the possible crimes of the Presidency before and also, within, but the impeachment would happen with a federal grand jury, where the President is sentenced for crimes, which is not in the President’s Office duties. So, the possible grand jury are there as much as it was for Nixon and was for Clinton. No difference for Trump, unless the House of Representatives and Senators at the Congress are spineless individuals who are all loyal to Moscow and Russians like Trump. Peace.

Reference:

Ronald R. Rotunda letter to Judge Kenneth W. Starr – ‘Re: Indictability of the President’ (13.05.1998)

Mzee was it Warfare or Budget, Mr. President?

President Museveni: “Yes, it is true I was a rebel, but sometimes rebellion fails. I was fighting a just war” (#UGBudget17 Speech, 08.06.2017).

Today was the day the Budget Speech from Minister of Finance, Planning and Economic Development (MoFPED) Matia Kasaija as the Parliament we’re delivered the total budget for the Financial Year of 2017/2018. This one has already been voted for and was a summery for the representatives in Parliament to know the values of their ministries and the projected use of the revenue of the state will have. Still, on this day, the President of 31 years, the rebel of 1980s decided to wear military fatigue and be wearing the gear as a General. He was not the executive in some sense, he was the military general. The gun-loving and militarized politician Museveni was allover today.

Therefore I have to take a piece of law, which could be used as the UPDF Act of 2005, where it states on 164: “Unauthorized sale or wearing of uniforms, etc.

(1) Any Person who, without authority –

(c) wears or uses any decoration supplied to or authorised for use by any member of the Defence Force or any decoration so nearly resembling that decoration as to be likely to deceive” (UPDF Act 2005).

So even if he is Commander-in-Chief and the Executive, he is still of contempt of the Parliament and their rules, when having to show-up in military fatigue or military uniform. As if he is storming to war and not trying to speak well of the budget framework and the voting for the post in the budget. This is clearly lacking the gravity of the acts of contempt. Wearing it in a sessions which is unauthorized or seem as wrong.

Therefore another part of the sub-section part (3): “Any person who by act, words, conduct or otherwise, falsely represents himself or herself to be a person who is or has been entitled to wear or use any uniform or decoration referred to in subsection (1) commits an offence and is, on convection, liable to imprisonment not exceeding three years” (UPDF Act 2005).

So when he as President is wearing the military fatigue or uniform in Parliament, I cannot take that man seriously for doing so. Even if he didn’t really violate the UPDF act, still his acts by words or even falsely representing himself, since he is not a full-time general, but a President of 30 years. His revolution or coup d’etat ended in 1986. A disco-tune that should have lost meaning two decades ago, but since he is still the President. That year is still magical like some of old Disney flicks.

Time to leave the Military Uniform Mr. President! Time to leave it behind and also be and act like a President. If he was in war or had to save Parliament from an angry powerful militia. Alas, it is not so! Time to relief the attire and be peaceful man, especially since he is supposed to help with the National Dialogue in South Sudan, but easier to sell arms than negotiate peace, right Mr. President?

So was it a sign of warfare from the President or his NRM Way to prove that the bullets gave him power to bless the budget? Peace.

Reference:

The Uganda People’s Defence Force Act 2005

#UGBudget17: Half borrowed and a third paid back in Interests!

Today the Ugandan government, the National Resistance Movement finally read the Shs. 29 Trillion budget for the 10th Parliament. However, it is not necessary the size of funds and all, which is allocated, but the way it is funded. Like “Government hopes to raise sh14.6 trillion in revenues to fund the 2017/2018 budget” (Uganda Debt Network, 08.06.2017). Of the 29 Trillion, they expect to get close to half of that, but the monies has get from somewhere and also be of use. What is left are relieved like this: “The balance sh14.3 trillion (49.5%) of the National Budget will be raised through internal and external borrowing” (Uganda Debt Network, 08.06.2017). With this in mind, half of the budget is adding more debt. So if a nation already having lots of debt and debt repayment, it still adds another half budget. This is a bad cycle of events.

There lets us put things in perspective: “Our concern is sh9.9trillion, which is 35% of the total budget, will be spent on debt repayment” (…) “Amount of money spent on debt repayment has escalated in the recent past now at 9.9 trillion for fy2017/18” (Uganda Debt Network, 08.06.2017).

Therefore, the state and the NRM are clearly getting funds through loans to pay-off their interests. AS the 35% of spending is on interest in the coming fiscal year. This should worry, even if the corruption, misspending of obnoxious amount of funds through the paradise of Okello house. Still, that 1/3 of the coming budget is paid interest on old loans, which are been made by this government and by this President. What it show is the lack of concern of the future and how sound fiscal policies. At this state, the government of Uganda are clearly footing the bill. They are filling in the blanks for where they in the past had happy donors filling the envelopes.

The NRM and President Museveni is overspending and misusing state reserves, as the revenue and the state coffers do not sustain this massive overspending. Certainly, it is visible, also the worry of the running interest rates and growing debt as close to half of this year alone are by loans. Neither if it is local, by foreign or multi-national financial institution does save the fact, that the state has a problem.

That of the coming fiscal year, the state is borrowing half, and repaying that with 35% says a lot. IT says the fiscal policies needs change and it is dire. The state are clearly walking the wrong path. And remember this, there will be supplementary budgets during the fiscal year, that will expose the overuse of funds and needs for more loans. Therefore, they are surely going to exploit the faith in future, without having the funds for it today. Peace.

Uganda: CSBAG – “Reducing Wastage and Curbing Inefficiences to Finance our Priorities for the FY 2017/2018 (09.04.2017)

Opinion: MPs now become tax-exempt is just another way of being unaccountable!

10th-parliament-sep-2016-p2

It is just one of them days where the madness continues at amp speed, where the government officials continue to eat off and sponge of the plate of the citizens. Where the concern for their own behalf counter their constituency and even their own conscience. With that in mind here is ill-spirited news from the National Assembly, the 10th Parliament of Uganda:

“This is after President Yoweri Museveni assented to the Income Tax Amendment Bill 2016. The Speaker of Parliament, Rebecca Kadaga told a plenary sitting on December 21, 2016 that the President signed the law on November 19th, which in essence means that their allowances on mileage and constituency allowances, sitting allowances for committee sessions, town running allowances, basic pay and car purchase allowances, will be exempted from taxes” (Parliamentary Watch, 22.12.2016).

Already as it happens, it is no surprise, none should be thinking that this could appear before the moon and sun, even the doubting stars would not dance of joy. They are just all where they, where are before and will be so after. Still, the constituency of these Members of Parliament, the people of Uganda should not accept this robbery, this negligent concern for their hard-earned taxed monies that been accumulated with vigour from the Uganda Revenue Authority.

This vicious attempt of eating of the spoils, the grandeur of greed while the people both in parties, in businesses and even civil servants doesn’t get paid on time. Banks are collapsing and businesses bailed out, still in this economic climate the wealth and richness are now beholden the men and woman who represent the ones paying the tax. It is amazing that a person earning little or nearly nothing pays VAT on products or on Airtime that become levied to pay for the tax-exemption of the MPs. Together with the ordinary paid tax on working hours and such. Still, the people representing the tax-base and the ones taxed are tax-exempt. Is not extraordinary, that the ones that leaders and representative does not have to pay tax and does not need to behold accountable for the work they do as representatives while they are serving the public.

We can question their moral integrity, the moral fabric of this design and act as they scrupulous extend their wealth on the cost of the population. The reach of malice and bravado that can only been seen as vicious attempt to allow thieving and become unaccountable. They are not ordinary citizens and not even careful law-abiding when it does not matter if they pay tax on their earned salaries.

The outcome of this matter is clear, they do not need to be accountable or even caring about transparency about their wages, their allowance and extra funds are exempt, and they can go by the merry, be jolly with the colleagues, and be sure that people won’t find out their real allowance or credible income. Since they are not really in need of filling that into the tax office or correct their income statement, since for reason number one: they are not levied any tax against in the near future. The law permits them to keep this in dark, the new forms of shady agreement and paid suits will be high flying and this while the proclaimed the URA has tried to put the memo: “have collected more money than ever before”. Still they have not counted in the estimated income or the current inflation to why the amounts of shillings collected has increased!

With that in mind if the collection and disrespect for paying tax will rise in the near, it is understandable as the disgraced MPs are sponging with no concern for their constituents, not on paper and not with concern for their pockets. They are only caring about their own pockets, not the pockets are clearing their checks and balances by the end of the month. The allowances and salaries are now secured as much as their growing wealth as well.

This is disrespecting the law-abiding citizens who themselves pay their levied taxes and are responsible, everyone who contribute their hard earned currency to the plate for common good, that common good is not to be sponged on the individuals who represent the ones who pay. They are supposed to share it to generate a working government with institutions who servers the public and the people. As well securing salaries to teachers, doctors and civil servants, which is the MPs as well, but not for them to become wealthy.

These MPs, this President Museveni has forgotten the basics, he has forgotten policies and what makes a grand state, he has forgotten and it has dwindled in his power-grabbing ways. The thieving starts from him and ends with him, his sign and signature on a damaging bill that creates a vacuum between the citizens and the representatives in Parliament.

President Museveni has forgotten due-diligence and even self-respect as all he wants to do is eat and let his loyal elite eat; so they will vote for his bills instead of concerning them with the people, the citizens who they represent. They can pay for their cars, their houses and salaries, but the MPs do not need to be accountable or even pay tax for it. Because the honourable, the elite, these Members of Parliament think they deserve to be grander and wealthier than the ones they represent. In addition, how wrong they are, because they are supposed to understand and make the citizens life better and their needs for better future. Now they are only concern with their own. That is not a good look, it is a bad one and it is self-inflicted. Peace.

Uganda: CSBAG statement on the Income Tax (Amendment) Act 2016 (21.12.2016)

csbag-21-12-2016

Uganda: Where is the Income Tax Bill 2016? (14.12.2016)

ug-income-tax-14-12-2016-p1ug-income-tax-14-12-2016-p2

Advocacy Brief on Kenya: 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court 16-24 November, 2016 (21.11.2016)

kptj

Background

At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.

Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.

Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.

  1. Engage and Withdraw Simultaneously?

A Contradiction in the Mandate of the AU Open Ended Committee

  1. The 27th ordinary session of the African Union’s assembly in July 2016 issued a decision on the ICC[1] pursuant to a similar one from the previous session[2]. Besides praising the court’s termination of the case against Kenya’s Deputy President William Ruto, the AU outlined a five-point agenda for the Open-Ended Committee of Foreign Ministers on the ICC, which included the following:
  • Engaging with the United Nations Security Council (UNSC) before the January 2017 AU Summit and before the 15th Assembly of State Parties in November 2016.
  • Maintaining the earlier decision from January 2016, to develop a comprehensive strategy to inform the actions of AU member states that are party to the Rome Statute; a strategy that includes collective withdrawal from the ICC.
  • Concluding a review of the ICC’s interpretation of Article 93 of the Rome Statute regarding the compulsion of unwilling witnesses to testify, with a view to inform debate at the 15th
  • Conveying the message that AU member states object to the inclusion of language requiring the UNSC to mandate UN peace-keeping missions to enforce arrest warrants in Africa.
  • Utilising the AU Mission in Brussels, Belgium, as the secretariat to the Open-ended Ministerial Committee and provision of institutional support to the African Group in The Hague, Netherlands, to ensure effective coordination of its activities.
  1. The AU has since held a meeting with the UNSC in September 2016 to present pre-formulated terms developed by the Open-ended Ministerial Committee as conditions to keep African States as parties to the Rome Statute. These conditions were as follows[3]:
  • Immunity under the ICC’s Rome Statute for sitting heads of state and government as well as senior officials;
  • Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
  • Reduction in the powers of the ICC Prosecutor.
  1. Recent developments have seen South Africa, Burundi and The Gambia commence processes to withdraw from the ICC; seemingly as part of actualising the intention cited in the agenda of the Open-ended Ministerial Committee. These actions expose the agenda by the AU to be disingenuous and presupposes that the deliberations within the ASP would be futile.. The wave of withdrawals occurs against a counter-wave of support for the Court by countries including Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana[4]; an indication that the strategy for mass withdrawal does not enjoy the consensus suggested by the AU decision of July 2016. These countries have suggested that concerns expressed by African states are not insurmountable and can be addressed within the framework of the ASP. Their support for the ICC underscores the fact that the obligations under the Rome Statute are State obligations and not AU obligations; as such, decisions on withdrawal will be based on national interest that cannot be assumed by the AU.
  1. Furthermore, the strategy for AU member states to withdraw undermines the other outlined agenda items of engagement with the ASP, such as the review of the interpretation of Article 93 of the Rome Statute and the enforcement of arrest warrants. Such contradictory actions raise the question of whether the AU is negotiating ICC reforms in good faith.
  1. In light of the foregoing, KPTJ recommends that:
  • African States abandon and disregard calls for mass withdrawal from the Court and instead consolidate the member bloc to advance their concerns within the bounds of the ASP in deliberations based on good faith.
  • African states should continue to publicly reaffirm their support for engaging with the ICC through the ASP and prevail on the AU to adjust its engagement strategy accordingly. We applaud the statements made by Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana.
  • An ICC Liaison Office should be established at the AU headquarters in Addis Ababa to facilitate more productive and sustained communication between African States and the ICC as part of restoring a relationship that has become plagued by mistrust and misunderstandings.
  1. Absence of Accountability?

Peace, Security and Stability

  1. The characterisation of the ICC as undermining the peace and security of states or threatening their stability has become a recurring theme by those advocating disengagement or withdrawal from the ICC. In its notice of withdrawal, South Africa claims that its aspirations for the peaceful resolution of conflicts were being hindered by its obligations under the Rome Statute[5] to arrest Sudanese President Omar Al Bashir when he attended the June 2015 AU Summit in Johannesburg. Kenyan government officials have also previously described the cases against Kenyatta and Ruto as an existential threat to peace and stability.
  2. A closer scrutiny of this assertion in the face of ongoing conflict situations suggests the contrary. The absence of accountability processes does not necessarily facilitate peaceful resolution of conflicts; the South Sudan and Burundi conflicts instead point to protagonists willing to escalate violence, even in the context of peace negotiations. Burundi and The Gambia have commenced processes to withdraw from the ICC at a time when their respective governments stand accused of acts of repression and mass human rights violations. Rather than advance the cause for peace, the clamour for withdrawal from the ICC is playing into the hands of those wary of the prospects of accountability in the aftermath of conflict. Even more concerning is an apparent trend of rising post-election violence, such as that witnessed in Kenya previously and in Gabon currently, or violence stemming from efforts to instal third-term incumbencies in the Democratic Republic of Congo (DRC) and Burundi. Such trends are bound to persist in the absence of mechanisms for accountability, of which the ICC is a critical component.
  3. The assertion that the African Court of Justice and Human Rights (African Court) and its proposed expanded criminal jurisdiction through the Malabo Protocol would fill in any void created by a mass withdrawal from the ICC is erroneous. The African Court is a distant prospect for addressing the impunity gap: it is far from being operational. Since 2013, only five states namely Benin, Kenya, Congo, Guinea Bissau and Mauritania have signed but not ratified the Malabo Protocol, which requires the ratification of 15 states to begin operations. Kenya is the only state thus far that has made a financial pledge of USD 1 million to operationalise the court — a far cry from the resources required for a court of broad jurisdiction consisting of a mandate on human rights as well as international law and interstate disputes. It has previously been estimated that a singular international criminal trial costs USD 20 million to undertake. In addition, the protocol contains contentious provisions that undermine its viability as an alternative platform for international crimes, the most notable being the clause of immunity for sitting heads of state and senior government officials. As a testament to the inability of the African Court to be an immediate replacement of the ICC as desired by some, even South Africa through its Justice Minister has indicated that it will ask for a review of the Malabo Protocol to address contentious issues. Furthermore, limited progress has been made towards establishing national mechanisms that can sufficiently undertake the obligation of accountability for international crimes.
  4. KPTJ recognises the pursuit of justice in conflict and post-conflict settings as an essential pillar of rebuilding democracies and restoring rule of law. These are the pathways to lasting peace, security and stability. Rather than push to void international justice mechanisms after the conflict to facilitate mediation, we recommend that:
  • African states fully implement and consistently apply already established norms on democracy, peace and security as a preventative measure to conflict including: the African Charter on Human and Peoples’ Rights; the African Charter on Democracy, Elections and Governance and; the African Governance Architecture.
  • African states must critically reflect on and address the issues of the African Court’s capacity, accessibility, legal standards outlined for crimes under international law and expunge provisions conferring immunity on sitting Heads of State and senior government officials. This process must not be rushed or predicated on a manufactured crisis precipitated by a strategy of mass withdrawal from the ICC.
  • African states should establish robust and credible national mechanisms to address the accountability question at first instance and in complementarity with regional and international mechanisms. They must also broaden their policy considerations to include comprehensive reparation programmes for victims of international crimes.
  • Disparity between State Obligations and Reality?

A look at State Cooperation

  1. The Kenya and Sudan cases have exposed the frailties within the Rome Statute framework in as far as state cooperation is concerned. These cases have laid waste to the presumption that States will willingly engage with the court in the face of cases seeking to prosecute sitting heads of state, their deputies or powerful elites in close proximity to power. State cooperation has only demonstrably worked in instances where the target for prosecution is a vanquished foe of conflict as seen in the cases of Uganda and Cote d’Ivoire, that are fast advancing a notion of “victor’s justice”. This challenge is further compounded by the fact that the final recourse for addressing the lack of state cooperation rests with the ASP. The ASP being a political organ of the Rome Statute is influenced by political rather than purely legal considerations in making its decisions, which makes the issue of resolving the non-cooperation of states problematic. A final challenge to state cooperation is the failure of the United States, China and Russia to ratify the Rome Statute while also being members of the UNSC with the power of referral of matters to the court. This has created the notion of double standards within the international justice system and emboldened other states to disregard cooperation with the court.
  2. KPTJ calls on the members of the UNSC who have not ratified the Rome Statute to display leadership on State cooperation with the court by first ratifying the Statute and utilising its discretion on referral and deferral in a manner that adheres to the objectives of the Statute. We further wish to reiterate that state cooperation must denote effective cooperation that facilitates the mandates of the respective organs of the court and not feigned cooperation which creates the perception of facilitating the court but in fact consists of using procedural and technical obstacles to undermine the court. We call on the ASP to adopt a consistent and objective legal standard in the assessment of state cooperation.
  3. Are there lessons to be learned?

Taking stock of the experience in the Kenya cases

  1. The Kenya cases and the manner of their termination carry critical lessons for consideration to inform future actions by the court and the content of reforms within the strategic plans of its respective organs. The Office of the Prosecutor (OTP) as well as the bench on various occasions decried the instances of witness tampering and intimidation as well as non-cooperation by the state in responding to the OTP requests for information and a failure to execute ICC warrants of arrest with respect to three Kenyans suspected of witness tampering. This in fact has led to a finding of non-compliance against Kenya and led to its referral to the ASP under article 87(7) of the Rome Statute. In the midst of all this, was an unprecedented and disruptive diplomatic effort that deliberately exerted political pressure on the court with a view to influencing the outcome of the Kenya cases. It is arguable that these diplomacy efforts yielded the concession of excusing President Kenyatta and Deputy President Ruto from continuous presence at their trial and that the current wave of withdrawals from the ICC on the basis of an apparent bias by the court against Africans are a fallout from these diplomatic efforts. The capitulations of the cases have also pointed to significant flaws in the investigative and prosecutorial approaches that informed the development of the cases and must lead to some introspection from the relevant mechanisms. The fact that the Trust Fund for Victims is yet to commence operations in Kenya cannot go without mention.
  2. KPTJ urges all the organs of the court to reflect on these experiences and take due cognisance of the following lessons and recommendations:
  • The ICC, particularly the ASP, should do more to ensure that it does not allow political statements to interfere with the judicial independence of the Court.
  • The ICC should ensure that it takes steps to respond to messages of a political nature and correct inaccurate statements in a timely manner. In addition, it should ensure that such key messages reach the right audiences, including victims and affected communities.
  • The Court should continue to build its relationship with African States that openly support the mandate of the ICC; in addition, the ICC should do more to improve its relationship with, and image at, the AU.
  • The Trust Fund for Victims should commence operations in Kenya, as victims have received little to no assistance from the Kenyan government.
  • The Prosecutor should carefully consider when to request ‘summons to appear’ as opposed to ‘warrants of arrest’ and take into account the individual circumstances of each accused person in doing so, particularly their potential to intimidate witnesses and interfere with evidence.
  • Swift action should be taken by the Prosecutor and the Court in instances of non-cooperation by States Parties. Any instances of non-cooperation should be resolved as speedily as possible, in such a manner that the outcome of proceedings on non-cooperation can be applied to strengthen an ongoing case and not be delayed to the point that the outcome is only of academic significance.
  • The Prosecutor should continue to carry out a review of its investigative strategies and methods in order to improve its chances of success at trial.
  • The Prosecution should ensure that its staff are able to spend as much time as possible on better understanding the context and nuances of a given situation country.
  1. Pursuit of reform without prejudice?

UN Reform vs ICC Reform

  1. The unique role played by UNSC in referral and deferral of cases before the ICC means that the debates on reforming the court and reforming the UN and in particular the UNSC have inevitably intersected. We have witnessed both undertones and overt accusations of imperialism and undue influence directed at the court on account of cases on Africa referred to it by the UNSC (Libya and Sudan). Arguments made to amend the Rome Statute to confer immunity for sitting heads of state and senior government officials are laced with grievance against the UNSC permanent five members possessing a de facto immunity from prosecution under the ICC on account of their veto power. The end result is a misdirected effort to amend the Rome Statute or in the extreme withdraw from the ICC on the basis of perceived excesses that are better addressed by engaging the broader debate of UN reforms.
  1. While KPTJ acknowledges the slanted relationship of the UNSC with the court and supports a robust conversation on its reforms, we call on states not to misdirect the agenda of reforming the UNSC into discussions on improving the functions of the court and occasion amendments to the Rome statute that sacrifice the future of the court as part of a bargaining process on UNSC reforms. We call on African states in particular, to distinguish the broader question of UN reforms as enshrined in the “Ezulwini Consensus” from the question of reforming the Rome Statute and reflecting on the performance of the court. We call upon African member states to the Rome Statute not to sacrifice the promise of justice for victims of atrocity crimes at the altar of grievance against the unequal power relations represented by the UN Security Council.

end/kptj/16.06.2016

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About KPTJ:

This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.

[1] Assembly/AU/Dec.616 (XXVII)

[2] Assembly/AU/Dec.590(XXVI)

[3] Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html

[4] Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711

[5] https://www.justsecurity.org/wp-content/uploads/2016/10/South-Africa-Instrument-of-Withdrawal-International-Criminal-Court.jpg

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