By FREDERIC MUSISI & TABU BUTAGIRA(The Daily Monitor)
Uganda’s Permanent Representative to the United Nations, Mr Adonia Ayebare, has been selected to canvass continent-wide consensus on a proposal to seek advisory opinion from the International Court of Justice (ICJ) about immunity for presidents.
The choice of Mr Adonia by African diplomats accredited to the UN headquarters in New York, follows a January 2018 resolution in Addis Ababa, Ethiopia, by heads of state and government for clarity on immunity in the wake of indictment of sitting African presidents by the International Criminal Court (ICC).
Mr Lazarus Ombai Amayo, Kenya’s envoy to the UN, on behalf of the Africa Group, last month asked Secretary General Antonio Guterres to include on the provisional agenda for the 73rd session of the UN General Assembly (UNGA), which starts mid-next month, an item:
“Request for an advisory opinion from the International Court of Justice on the consequences on states’ legal obligations, taking into account UN resolutions and the Rome Statute, with respect to immunities.”
The ICJ is the world body’s principal judicial organ. Africans are seeking its position following conflicting opinions by ICC Pre-Trial ChMrer II judges on whether or not incumbent presidents should be exempted from trial on the basis of immunity accorded to them by virtue of their offices.
They also cite the disparate interpretations and provisions on immunity for heads of state and governments under the UN Charter, the Rome Statute, customary international law and internal legislations.
Mr Ayebare told this newspaper by telephone that the request has already been added onto the agenda of the upcoming UNGA session.
“By seeking the advisory opinion in the exercise of its powers under the UN charter, the General Assembly will be able to bring a lasting resolution to a long dispute of immunities and conflicting obligations of states under international law,” the draft explanatory memorandum accompanying the agenda item proposal reads in part. Two-thirds of the 193 UN member states will have to endorse the request for the General Assembly to refer it to the ICJ and Mr Ayebare’s task includes leading the shuttle diplomacy to secure the referral.
International actors have found themselves talking at cross-purposes in part because some of the cases, such as the one against Sudan president Omar el-Bashir, were referred to the ICC by the UN Security Council. The ICC issued warrants for the arrest of president Bashir in 2009 and 2010 on two counts of war crimes and crimes against humanity and genocide in relation to the death of an estimated 300,000 people in Sudan’s Darfur region.
Countries have remained divided over the warrants, with even ICC state parties hosting Bashir and declining to arrest him.
President Museveni during his last swearing-in ceremony at Kololo in 2016 hosted the Sudanese leader among state guests and berated ICC as an institution full of “bunch of unserious people”, prompting a walk-out by some foreign diplomats.
A year later, Uganda campaigned for Justice Salome Bbosa, who last December was elected as an ICC judge, casting an on-off relation between the country and the international court. Uganda previously also co-led an unsuccessful continental campaign for African countries to withdraw en masse from the ICC when the court indicted Kenya’s president Uhuru Kenyatta and his deputy William Ruto.
The drive, which failed to garner required support, dissolved after charges against the Kenyan leaders were dropped.
Mr Ayebare said yesterday that the “advisory opinion is not focusing on the ICC” because “immunity of heads of states is as old as countries yet the current international law is not very clear about it”.
The Human Rights Watch associate director of the International Justice Programme, Ms Elisse Keppler, said the new proposal seems calculated to clothe president Bashir whom some countries are willing to arrest on the basis of the ICC warrant.
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