The African Union (AU) and its predecessor, the organisation of African Unity (OAU) have been on the receiving end of enormous criticism.
Chief among these have been its inability to help entrench constitutionalism, peace and democracy among its member countries.
This criticism has been justified, but equally justified has been the fact that the AU has seen a lot of improvements.
It’s participation in peace and conflict resolution in countries such as Somalia and Darfur where the organisation members have undertaken successful peace keeping operations.
Not so visible is that AU has discouraged coup d’etats in the continent where new ‘presidents’ who unconstitutionally gunned their way into power such as Andre Rajoelina in Madagascar and lately, the new ‘ president’ in Central African Republic are neither recognised nor allowed to stay in office.
The other day, the AU called an emergency meeting and stated its position in the complicated matter that involves the Kenyan presidency and the ICC.
It told the ICC not to prosecute a sitting African president. It has drawn criticism as being another African big man syndrome where dictators are trying to entrench impunity. The critics point, rightly, to justice for the victims.
The usual suspects; Human Rights Watch Amnesty International and this or that human rights organization are leading the chant. However, I think the AU got this one right.
We need to appreciate the institution of the Presidency and its role in a democratic and indeed any other system. In a presidential system such as Kenya’s, the president is the head of state and the head of government of Kenya and is also the Commander-in-Chief of the Kenya Defence Forces.
As head of state, the president not only holds the highest ranked position in a sovereign state and has vested powers as the chief public representative of the state of Kenya.
He is the symbol of the Kenyan state. As the head of government, he is the highest official in the executive branch. As the Commander-in Chief he is the supreme commander who exercises the ultimate command and control of all the armed forces of the republic.
As we can see, these are serious roles of immense responsibilities that cannot be trifled with.
However, the game changer is the simple matter of sovereignty. By the Kenyan constitution, all sovereignty (independence, control, authority, dominion) is vested in the people of Kenya and is exercised through the president.
Sovereignty is not negotiable; it implies that national laws and constitutions supersede international laws and conventions. Anything else is subjugation (the opposite of sovereignty).
The seemingly immense powers of the presidency are there to serve the republic’s population. This is why all the citizens have a right to be served and protected by the president through these powers and responsibilities.
In light of the recent terrorist attack on Kenya, the right to security of all the citizens. There is a clear and present danger to the state security in these threats. Citizens and their property is a key duty in the president’s docket, any president.
Sure, the victims of the crimes against humanity deserve justice. But even more important is the right of all the citizens of Kenya to have their president able to serve out his mandate. This is why the cases against the presidency have to be deferred.
One might argue that this case is against Uhuru Kenyatta, the person not the president. That is only halfway true. As of now the person and the institution are inseparably embodied in the person of Uhuru Kenyatta.
This is not sycophancy, it is a fact, till the day he, and indeed any other president leaves office.
Going by these facts, it is easy to see why the AU and indeed any right thinking person or organisation would insist on the immunity from prosecution of a sitting president.
Sam Kebongo is an Entrepreneurship Development Consultant based in Kigali.