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"content": "history of the world, since the establishment of Nation of States, no Head of State has ever been required by national or international law to appear before a court of law. So, this was something quite historic and, therefore, the President owes the people who have elected him and the people who have placed him in office an explanation; why he is going, under what circumstances and the legal context in which he was making an appearance before the ICC. Mr. Deputy Speaker, Sir, a lot has been said about the ICC and I want to go on record and say that, initially, when the ICC was being established, I am one of the scholars who wrote extensively in support of the need for an international judicial mechanism to make sure that all persons, irrespective of their official capacity, do not abuse office and do not misuse the power they hold to traumatize, brutalize, kill and maim people. It is in this context that it is not surprising today that the International Criminal Court Statute does provide therefore, that the official position of an accused person as Head of State or Head of Government is irrelevant. That is Article 25 read together with Article 27 of the Rome Statute. In fact, it goes on for the avoidance of doubt to clarify in Article 6 that criminal responsibility before the court is individual; it is not collective or official. Once somebody is charged, he or she is charged as an individual and not by virtue of the office they occupy. In that connection, in the strict sense of a clear reading of Articles 6, 25 and 27 of the Rome Statute, it was quite in order for the President therefore to comply with the summons that had been issued for him to appear. Some of us have had our view on this and our own view was that - I know the President touched on this issue in one way or another – the Rome Statute and the provisions of individual criminal responsibility and the inapplicability of official status is supposed to ensure that people do not commit offences and hide behind the office, so that they do not start saying; “you cannot try me or investigate me because when these things happened, I was President”. I think that jurisprudence is in order. This is because it is not the work of the President to kill people. It is not the job description of a President to commit crimes against humanity and so you cannot hide behind an office as a shield against accountability for international crimes. Mr. Deputy Speaker, Sir, what has surprised us, however, is that these provisions on individual criminal responsibility have been interpreted to mean that if you have a trial, it does not matter whether you have other public duties, you must be available to the court. This is not true because the court’s own logic that they are oblivious of official capacity is self defeating to the extent that the court itself, the statute itself and the structures under the statute rely on State Parties not only in terms of drawing their authority and legitimacy, but also in terms of the legal framework, continuous amendment of the statute, the rules of evidence and procedure as well as other statutory and regulatory frameworks that the Assembly of State Parties does. Therefore, Mr. Deputy Speaker, Sir, what the President did and that is contained in the Speech, is to say; “Look, I have been accused of committing crimes as a citizen of Kenya.” As he put it in his Speech, he said; “The things I am accused of did not take The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate"
}