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Netanyahu’s case reveals underbelly of charging an incumbent leader

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By SEKOU OWINO
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In the last one week, we have been captivated by news about how different countries deal with criminal acts by their heads of state or government.

In the United States, many people have focused on the inquiry by the Intelligence Committee of the House of Representatives on whether the president has committed criminal or other acts worthy of impeachment.

One of the grounds being examined by the committee is whether the president had engaged in an illegal act of bribery of a foreign government for his personal political advantage.

Impeachment under US law is the beginning of a process to remove a president from office or a federal officer suspected of having committed a crime. It is technically a mini-trial by the House of Representatives to determine if the crimes were committed. If illegality or other criminal conduct is established, the president is then impeached. To formally impeach the president, the complaints of illegality are drafted in the form of charges and submitted to the Senate for a trial as a precondition for removal from office if two-thirds of the Senate determine that the charges have been proved.

While all this was happening in the US, the attorney-general of Israel pulled a legal move that shook the country and possibly much of the world. He announced his intent to charge the current Prime Minister Benjamin Netanyahu with some criminal offences. This was a first in Israel as no sitting prime minister had been indicted in that country.   

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The attorney-general indicated that he would bring three charges against Prime Minister Netanyahu mainly on corruption and fraud. Under the constitution of Israel, instituting charges against a sitting prime minister does not necessarily lead to his resignation unless there is a conviction. Premier Netanyahu has denied these allegations and stated that they are a witch-hunt.

The shock in these cases is that a sitting head of state or head of government is charged before a court while in office. It is rare for heads of state or government to be tried for any crimes they may have committed while they are in office. For example, in the US, the Department of Justice has a standing position that a president may not be indicted or charged with any offence while still in office.

However, countries are replete with heads of state being brought to trial by their subjects.

In England, King Charles 1 was put on trial for treason in 1649 in a struggle for supremacy between him and parliament. The charges were based on a law passed by the Rump Parliament that inverted the law of treason as traditionally understood and made it an offence for the king to wage war on his subjects. The king refused to plead to the charges, challenging the power of the House of Commons claim as representatives of the people of England claiming that he could not be subjugated to trial by his subjects. The trial authority asserted that even a king must be subject to the law, proceeded to pronounce a conviction and passed a sentence of death, which was carried out swiftly.

The French would follow this path of bringing the sovereign head of state to trial when King Louis XVI was charged and tried by the National Convention, which abolished the monarchy and declared France a republic following the French Revolution in 1792.

Among the charges brought against the king was that he had bankrupted France, plotted against the revolution and despised the constitution passed by the National Convention. Given a supposed right to defend himself without calling witnesses, King Louis XVI was convicted and sentenced to death.

History suggests that whenever a head of state was sent to trial, it was often in the context of a revolution.

In the 20th century, heads of state or sovereigns continued to be charged for offences but more often after leaving office, and mainly after being overthrown or voted out of office in rare cases. In 1988, then leader of Panama Manuel Noriega was captured by US forces, flown to the US and indicted in Miami. The charges were that he had been involved with drug-trafficking and money laundering. Manuel Noriega was sentenced to 40 years upon conviction but the sentenced was reduced later.

The trend of charging leaders with criminal offences changed to indictment being brought after such leaders are deposed or retired. The emergent principles of accountability for crimes committed while in occupation of sovereign office are best illustrated by the late president Augusto Pinochet of Chile. Pinochet ruled as president of Chile from 1973 until 1990. While in retirement, Pinochet found himself in the crosshairs of an indictment by a court in Spain following complaints of gross human rights violation by his regime.

This indictment was followed by the arrest of Pinochet while he was visiting London in the 1998. The parties seeking his indictment wanted Pinochet extradited to Spain for trial. This was challenged in court and Pinochet was kept under house arrest in London until a court declined to enforce the arrest warrant and he was set free to return to Chile.

In Africa, the indictments for political leaders have exhibited two trends. They are normally for gross human rights violations and by internationally established tribunals. The most known is the International Criminal Court. This is the court that sends chills down the spines of African presidents and prime ministers with its ever-ready willingness to commence prosecution for gross violations, mainly for crimes against humanity and war crimes. Former Sudanese president Omar al-Bashir was charged by the ICC for war crimes while already holding the office. He declined to honour the summons. But following his overthrow early this year, Bashir was charged with corruption in Sudan.

Former Liberian president Charles Taylor is the one president in Africa who was indicted by an African tribunal while in office. In 2003, the prosecutor of the Special Court of Sierra Leone obtained from that court an indictment against Taylor for, among others, selling arms and weapons to a rebel group in Sierra Leone in exchange for blood diamonds.

President Taylor resigned after the indictment, went into exile but was subsequently surrendered to the tribunal for trial. He was convicted and sentenced to 50 years in 2012 for charges that the presiding judge described as some of the most heinous and brutal crimes in recorded human history.

Former South African president Jacob Zuma is also in the courts of South Africa challenging the determination of a court that ordered that he should be tried for corruption relating to an arms deal before he became president.

Back to Israel. The announcement about Netanyahu’s indictment is only unique because he is prime minister at the time the determination to prefer charges against him was made. Former prime minister Ehud Olmert was convicted and sent to prison by a court in Jerusalem for fraud, bribery, breach of trust and tax evasion.

Last Monday, Malaysia’s former Prime Minister, Najib Razak, went on trial for a number of corruption charges. One of them was for tampering with a government audit of a state fund with a view to concealing corruption regarding the Fund. The former Prime Minister is facing a total of 42 charges of corruption, breach of trust, corruption and money-laundering, all of which he has denied.

While the kings of yore such as Louis XVI and King Charles I went to trial seeking to establish their individual and royal primacy, 21st century leaders are exposed to criminal trials at two levels — either brutality that results in war crimes or stealing money and assets.

Sekou Owino is Head of Legal, Nation Media Group PLC.





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