By Vivian Navate
A dramatic global debate has erupted after United States forces moved in on Venezuelan President Nicolás Maduro, seizing him to face international trial in 2026. The development has triggered a sobering question across Africa and beyond: could the U.S., or any foreign power, legally capture a sitting Kenyan President and take him abroad for prosecution?
According to Kenyan constitutional lawyer Danstan Omari, the uncomfortable answer is YES, but under specific circumstances recognised by international law.
Omari explains that Kenya’s Constitution grants the President strong immunity from criminal proceedings within the country during his time in office. He cites Article 143(2) which states that “criminal proceedings shall not be instituted or continued in any court against the President or the person performing the functions of that office, during their tenure of office.” In practical terms, this means a sitting President cannot be arrested and charged before any Kenyan criminal court, whether in Makadara, Milimani, or elsewhere.
However, Omari points out that this immunity has a constitutional limit, one that many Kenyans may not be aware of. The same provision contains an exception that opens the door to international prosecution. Article 143(4) 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.”
In other words, while Kenyan courts cannot touch a sitting President, international law can.
Omari explains that this applies to the most serious international crimes, including genocide, crimes against humanity, war crimes, crimes of aggression, torture, apartheid, enforced disappearance, slavery, piracy and human trafficking. These offences are outlawed under global legal instruments such as the Rome Statute, the UN Charter, and other treaties that Kenya has ratified, thereby agreeing not to shield even its Head of State from accountability.
He illustrates the point clearly: if a Kenyan President were to order extermination of an ethnic group, authorise systematic rape campaigns, wage unlawful war against another state, or preside over widespread enforced disappearances, international authorities could lawfully intervene even to the point of capturing the President and transferring him for trial abroad.
This is precisely the legal foundation behind Maduro’s. Kenya’s Constitution deliberately aligns presidential immunity with global justice systems, ensuring it cannot be used as a shield for international crimes.
History shows Maduro is not alone. Former Liberian President Charles Taylor was seized and delivered to The Hague. Serbia’s Slobodan Milošević faced international trial. Panama’s Manuel Noriega was captured and flown to the U.S. Iraq’s Saddam Hussein was removed and tried. To Omari, these cases demonstrate that global enforcement is both real and precedent-driven.
He stresses that Kenya’s Constitution draws a clear line: a President is protected locally but not insulated from the international community. As he explains it, immunity applies “in Kenyan courts, under Kenyan criminal law, but it does not cover crimes under international treaties prohibiting immunity.”
The Maduro arrest therefore sends shockwaves through political corridors worldwide, especially in regions where state power has historically been used to suppress citizens. To some leaders, it feels like a foreign intrusion. To human rights defenders, it looks like overdue accountability.
Either way, Omari notes, Kenya has already chosen its legal position, and written it into the supreme law of the land.
A Kenyan President cannot be arraigned at home while in office. But if accused of international crimes banned under treaties Kenya has signed, he may legally be taken abroad to stand trial.
