In Uganda, a cultural leader once invoked presidential immunity after failing to pay for fish he had ordered from suppliers in the late 1960s. Whereas presidential immunity is something that municipal legislation speaks about with subtle reservations, the ICC has no appetite for presidential immunity.
The indictment and arrest of several heads of state in Africa and elsewhere clearly demonstrate that the International Criminal Court is at loggerheads with several provisions of African constitutions and beyond.
Legal immunity is a status exempting an individual or entity from being held liable for violations of the law, and hence protecting them from civil lawsuits or criminal prosecution.
The International Criminal Court statute does not acknowledge or recognize the constitutional immunities that heads of state enjoy; it regards such immunities as irrelevant. The Rome Statute, Article 27, is informative on this.
The same legal provision goes ahead to explain broadly in Article 27(1) that the statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of government or parliament, an elected representative, or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it in itself constitute a ground for reduction of a sentence.
Further, Article 27(2) states that immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such persons.
The practice of the International Criminal Court (ICC) and the Special Courts for Rwanda and Sierra Leone makes it clear that presidential immunity is not a defence in international crimes.
Uganda, on its part, has a strong history of presidential immunity from criminal prosecutions, beginning with Article 34(2) of the 1966 Constitution, where it was firmly enacted that the President shall take precedence over all persons in Uganda and shall not be liable to any criminal or civil proceedings in any court. The 1967 Constitution of Uganda, in Article 24(3), still affirmed the immunity of the President in civil and criminal matters. Further, the 1995 Constitution, as amended in Articles 98(4) and (5), provides that the President is immune from prosecution while serving as Head of State, and this immunity is extended until he leaves office.
In the case of Prosecutor v. Uhuru Muigai Kenyatta, the Kenyan President was indicted by the ICC while still a sitting Head of State.
What amounts to an international crime is well laid out in the ICC Statute, Article 5(2), on jurisdiction, admissibility, and applicable law.
The arrest warrants against President Vladimir Putin of Russia and Israel’s Prime Minister Benjamin Netanyahu clearly demonstrate that heads of state are within the scope of international law for crimes they commit.
Whereas several countries, such as Uganda, have ratified the ICC Statute and consequently established the International Crimes Division, the Rome Statute remains at variance with the constitutions of sovereign states.
This calls for deeper scholarly investigation into this troubling departure, as it is a well-recognized rule of international law that if a state cannot prosecute, it should hand over. However, where domestic governments are seen to be prosecuting, ICC intervention should be considered peripheral.
The Ugandan Constitution takes precedence over other laws, as enacted laws are ranked higher than treaty laws. Legal scholars should adjust their perspectives and propose appropriate legal remedies.
Written by Steven Masiga
The writer is a legal scholar from the Bugisu region. Tel: 0782231577.
