, NAIROBI, Kenya Jan 19 – Igembe South MP Mithika Linturi is planning a constitutional amendment to guarantee the president and deputy president immunity from both local and international prosecutions.
Linturi says he has notified the Speaker of his intention to amend Article 143 of the Constitution when the House resumes its sittings on February 10.
“The Constitution is amended at Article 143(4) by deleting the word immediately after the word ‘shall’ and by inserting immediately after the word president the word ‘or deputy president’ reads the amendment by Linturi.
The Igembe South MP added; “If the Constitution is protecting or giving the president immunity for crimes that he may commit locally while in office, we should not expose the president to any criminal proceedings any charges that the president may face internationally as long as that person is seated in that particular office.”
The provision states that “the immunity of the president under this article shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.”
Kenya is a signatory to the Rome Statute which does not explicitly recognise the president’s immunity as a reason not to comply with obligations under the Statute.
By seeking the insertion of the term deputy president into clauses 1, 2 and 3 of Article 143, the MP will be shielding the deputy president from proceedings being instituted against him during his tenure in office in respect of anything done or not done in the exercise of their powers under the Constitution.
MPs have previously invoked the sovereignty and independence of the country to justify calls for the International Criminal Court cases to be suspended saying currently, the court cases only serve to frustrate President Uhuru Kenyatta and William Ruto from performing their roles since ascending to power in 2013.
Parliament has twice approved motions to petition the ICC General Assembly to withdraw Kenya from the Rome Statute, saying “it is now evident that it is a political court.”
Linturi argues that his amendment should not be viewed as being politically instigated to protect President Kenyatta from fresh prosecution.
“The DP has had his case at The Hague that he has been attending diligently. The law does not act in retrospect. If you look at the ICC provisions, even if a state party withdrew, there is no proviso that any matter pending before that court would either be withdrawn or would cease, therefore this amendment does not have any effect at all on any matter going on at The Hague,” he said.
ICC Prosecutor Fatou Bensouda last month withdrew the case against President Kenyatta conceding the evidence she has cannot sustain the charges beyond reasonable doubt.
She however says the option of filing fresh charges against President Kenyatta at a later stage remains open.
President Kenyatta was the sole accused person in Kenya Case II after charges against his two co-accused were withdrawn.
The case against former Police Commissioner Hussein Ali was dropped at the confirmation of charges hearings, while that of former Head of Civil Service Francis Muthaura was dropped at the post-confirmation stage after the only witness the prosecution had relied on to confirm his charges said he had lied to the court.