rnational africa law human rights international law government leadership voting

It is accepted as a position of international criminal law that head of state immunity does not apply before international tribunals [1] . Any such immunity that Kenya had was waived by them joining the ICC, which they did voluntarily.  Even so, just because someone has a position of power does not mean they should have impunity from liability for very serious crimes.  [1] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), 14 February 2002,

Head of state immunity  Traditionally, heads of state have had immunity in foreign courts. This is for the normal functioning of diplomacy – so heads of state can engage in business at other states and travel to summits without the risk of harassment by vexatious claims in foreign courts, or foreign governments trying to attack the decisions of other governments in their own courts.  The ICC trying sitting heads of state would set a terrible precedent of a method of regime change – not even by foreign militaries, but by the ICC prosecutor. Regimes should change according to democratic mandate not foreign courts.

A previous Kenyan government, operating with a democratic mandate, ratified the Rome Statute. Therefore, there is no interference with Kenyan sovereignty: a Kenyan government legally and lawfully submitted Kenya to the jurisdiction of the ICC.  Besides, a “democratic mandate” would not stop the prosecution of a prosecution of someone for an offence committed prior to getting into office, which is what happened in Kenya. Neither is a “democratic mandate” a defence to perform crimes against humanity either in or out of office.

A delay is necessary for national security  Kenya is at risk of terrorist attack. Al-Shabab, a group linked to Al Qaeda have launched a number of attacks against Kenya. In addition to the Westgate massacre, there have been grenade attacks on bus terminals [1] and suicide bombings in refugee camps [2] .  Kenya’s waters are also used by Somali based pirates as a ground for attacks on international shipping, including possibly targeting ships travelling towards the port of Mombasa.  It is more important to the international community to have credible action taken in order to protect the Kenyan people from terrorism. This needs a strong Kenyan government – which means that there cannot be a change due to an international trial.  [1] Associated Press, “Two grenade blasts rattle Nairobi; 1 dead”, USA Today, 25/10/2011   [2] Ombati, Cyrus, “Terror suspects die after bombs explode on them”, Standard Digital News,

Kenya is an advanced state with a functioning system of the rule of law – except for those in power. With modern video technology, Ruto and Kenyatta could oversee the governance of the country from The Hague, or, alternatively, participate in the trial through videolink.  Even so, Al-Shabab are unlikely to be defeatable within the terms of Kenyatta and Ruto. Such a delay would only be useful if there was government reform or fresh elections necessary, rather than anti-terrorist action.

Interferes with a democratic mandate  Unlike many of the other ICC defendants, Uhuru Kenyatta and William Ruto have a democratic mandate from elections that “represented the will of the voters” [1] – electoral mandates given to them after their indictment by the International Criminal Court.  This must be respected by the ICC and the international community as a whole: even though they are suspected of crimes against humanity by a foreign court.  [1] European Union Election Observation Mission To Kenya, General Elections 2013 :Final Report,

Kenya does not need or want government by those who hand out illegal title deeds [1] and threaten the freedom of the press [2] as Kenyatta’s government does.  In addition to that, the allegations that the president used a banned occult gang, the Mungiki, in order to perform acts of mass murder is enough to end his credibility as a leader in the country – the best interests of good governance in Kenya mean that Kenyatta should go.  [1] Chanji, Tobias, “Raila Odinga says title deeds issued by President Uhuru Kenyatta illegal”, Standard Digital, November 25th 2013,   [2] Shiundu, Alphonce, “President retains punitive fines against media in new law”, Standard Digital, November 27th 2013,

Not every defendant is a head of state. While justice should aim to treat all defendants alike, there are some cases where things have to be changed in order to allow states to function.

Kenya needs the trial now  Without justice, there cannot be peace. Following the total failure of the Kenyan justice system to take action, exemplified by the Parliament’s complete and utter rejection of the Waki Commission, the ICC, which Kenya voluntarily signed up to, has to step in.  Ethnic violence still goes on in Kenya [1] , and if there is impunity in this case, no message will be sent out: justice must be done and seen to be done to prevent similar abuses and prevent justice being taken outside of the courts.  [1] Wachira, Muchemi, “Cattle raids and tribal rivalries to blame for perennial conflict”, Daily Nation, November 18 2012,

Just hold the trial by videolink  It has already been agreed that defendants can appear at the court by videolink [1] for parts of the trial. This is not problematic, unless the defendants want to start representing themselves.  Bearing in mind that Ruto and Kenyatta have been continuing to co-operate with the trial throughout the process, there is no reason to think that they would flee the international criminal court. Either way, if they change their mind, they could simply not travel to The Hague for the trial.  [1] Corder, Mike, “International court changes trial attendance rule”, The Wichita Eagle, November 28th 2013,

Kenya would be better off without them  Kenya does not need or want government by those who hand out illegal title deeds [1] and threaten the freedom of the press [2] as Kenyatta’s government does.  In addition to that, the allegations that the president used a banned occult gang, the Mungiki, in order to perform acts of mass murder is enough to end his credibility as a leader in the country – the best interests of good governance in Kenya mean that Kenyatta should go.  [1] Chanji, Tobias, “Raila Odinga says title deeds issued by President Uhuru Kenyatta illegal”, Standard Digital, November 25th 2013,   [2] Shiundu, Alphonce, “President retains punitive fines against media in new law”, Standard Digital, November 27th 2013,

Criminal defendants don’t get to pick and choose trial dates  Irrespective of who they are, Kenyatta and Ruto are nothing special – they’re just another two criminal defendants.  A person who is on trial murder or any other offence, whoever they are, can’t pick and choose their trial date for their own convenience or for their own business interests – why should these two particular defendants get a special privilege? Silvio Berlusconi was prosecuted by the Italian courts; the slow speed was due to the glacial pace of the Italian legal system rather than him particularly agitating for a special hold-up. The court cases were not done at his convenience.

Even though all parties agree to this, it is not appropriate for the ICC to be trying a sitting head of state anyway. The ICC is accepting this by holding the trial by videolink – no other court would do such a thing.  While it sounds tempting to allow Kenyatta and Ruto to participate in their trial by Skype, they may not continue to participate and simply refuse to leave Kenya if they are convicted.

Kenya doesn’t need a trial. The Kenyan parliament voted against such a thing – the Kenyan people decided in 2013 that they want to give Kenyatta and Ruto a democratic mandate.  While there is a terror threat – something that Kenyatta and Ruto can deal with in their role as head of state – Kenya did not have post election violence in 2013, and ethnic conflict is not going on at a major level. Even if there is no justice, there is peace, which is more important.