No to presidential immunity

I am not against a Head of State receiving privileges that befit his office, but I have for a long time squirmed at this global tendency to make him or her immune from prosecution while still in office. Almost everything about this tradition is wrong and it surely should not enjoy any place in the sun in our modern world.

I would never quarrel against our president living in a State House, moving around in a decent motorcade or enjoying benefits after he or she leaves office. The Head of State must live a comfortable and decent life.

However, there are so many contradictions, inconsistencies and real violations of the law where the privileges translate to immunity from prosecution for criminal activities.

Last week, African presidents and premiers emerged from their Addis Ababa meeting beaming at what they regarded as a neo-African victory – generally agreeing that the International Court of Justice must not extend its jurisdiction to African statesmen.

Of course, Uhuru Kenyatta of Kenya and his deputy, William Ruto, will smile all the way to the bank if this defiant position pulls through – as they are the latest figureheads to be hounded by the ICC for crimes against humanity.

The “leaders” position in spurning the ICC rests on two major arguments. First, they think ICC is only targeting Africans – all the statesmen on the court’s current list are from Africa. I don’t know how the ICC chooses its target, and will leave that debate for another day.

It is the second argument that motivated me to write on the issue of immunity this week. The African statesmen argued that their cushion against being tried should be the same as that of any other rulers the globe over. Here, I am sure they meant they enjoy immunity in their respective countries, and this should extend to the international arena, particularly where global watchdogs like the ICC are concerned.

My first problem with this international tradition of sparing heads of state from trial for obvious and sometimes subtle crimes is that it flies in the face of almost every constitution. All good constitutions prescribe equality before the law. The moment you build a wall around a person merely because that person is a president or prime minister, you are giving him or her superiority that undermines the tenet of equality.

What is particularly disturbing about this is that, on assuming office, the president takes an oath to respect, protect and safeguard the laws of the country he or she leads, and one of those laws, the people’s charter—constitution—clearly speaks to the need to treat everyone as equal before the law.

Of course, some people would rush to argue that immunity during a person’s incumbency does not make him or her different from others because they can still be tried once out of office. This reasoning is severelyflawed from the first instance. As they say, justice delayed is justice denied. If you delay delivering justice by a day, you have acted unfairly. Now, if you delay justice by 34 years, you have no place in our free streets. You should be in Chikurubi maximum prison, because you are very guilty.

Never mind the fact that the so-called progressive democracies like the US allow immunity for incumbents. The fact that it happens everywhere does not make it right, because it creates super humans out of people who are supposed to simply coordinate national affairs.

Giving immunity to incumbents, especially here in Africa where there is an absence of effective checks and balances, has acutely undesirable effects. Leaders tend to abuse office at will, knowing that it will be a long while before they face the humiliation of being arraigned before the courts.

In fact, by the time they are ready to step down, they would have done everything possible to erase their tracks, courtesy of the advantage of incumbency whereby they would abuse existing government systems to destroy evidence. More often than not, this includes eliminating any potential witnesses.

In any case, why do our law makers assume that prime ministers and presidents will not die in office?

Where they commit offences that might be difficult to wriggle out of, the heads of state tend to stay in power for as long as they can, even wanting to die in office. That is why they exhibit such a rampant tendency to change or try to change constitutions to enable them to stay in power forever.

This of course, is where dictators are made. The leaders would do anything to remove hurdles in their way. They would not brook a Parliament that opposes their attempts to change the constitution and before you know it, they are ruling by decree.

All these because the constitution has given them immunity in the first place! – For feedback, please write to [email protected]

Post published in: Opinions

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