The slow grind of the cumbersome ICC process has finally reached the point now, four years after the post-election violence, that charges should be “confirmed” against Uhuru Kenyatta and William Ruto. And of course the suspects have appealed this preliminary step in the march toward a possible trial as early as sometime in 2013. In the meantime Uhuru and Ruto are offering themselves to save the country from a Raila Odinga presidency in the latest campaign which is already the primary focus of the political elite with an election date that can be expected to take place before the accused finally face trial for “crimes against humanity”.
Kenya’s judicial branch should address and answer in short order the question of whether or not those facing “confirmed” ICC charges of “crimes against humanity” are eligible to run for, and be elected and sworn in as, President of Kenya prior to being convicted. The suspects will be campaigning in the meantime, and the longer it goes on the more dangerous it becomes–and if there is to be no relief from the Kenyan courts, Kenyans deserve to know now rather than later.
Kenyans are tired of being thrown the sops of reforms (even reforms we desperately wanted) in lieu of individual, personal responsibility for wrongdoing by politicians and public officers. We’ve had enough.
The relative good behaviour we’ve seen from the suspects since the ICC’s intervention is a testament to this fact. Accountability works. The fear of consequence works.
So we must insist that, pending a determination of innocence, they not be allowed to vie for elective office either.
The impending trial of four Kenyans at the International Criminal Court is likely to be a pivotal issue in the next General Election with two of the accused already showing their intention to turn it into a referendum on the trials.
At the rallies they addressed in Eldoret on Friday and in Kiambu on Saturday, Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto painted the race to succeed President Kibaki as a battle to stop Prime Minister Raila Odinga from ascending to the presidency.
That emotive pitch to their supporters in their respective backyards is likely to provide the key story line of the succession battle in the months to come.
Mr Kenyatta and Mr Ruto, who have both said they will be running for president, are in a loose alliance of politicians identified with their opposition to Mr Odinga.
However, they have yet to find a formula to pick one candidate to run against the PM.
The duo have consistently attempted to cast the PM as having something to do with the trials, although they have not provided proof for their claims. (READ: Uhuru blames violence on Raila)
Political analyst Karuti Kanyinga warns that such mobilisation could easily take the country back to the dark days of 2007.
Prof Kanyinga points out that the efforts by politicians to use the International Criminal Court (ICC) as an election issue threatens stability.
“The continuing mobilisation of communities and grouping of leaders along ethnic lines is a stark reminder that this can easily push the country to the precipice,” he says.
“The offhand attitude of the leaders towards the ICC ruling and a similarly cavalier attitude to the new Constitution and its institutions are likely to fail the country yet again.”
On Saturday, a group of ODM MPs defended the Prime Minister against attacks by MPs allied to Mr Kenyatta and Mr Ruto.
Assistant minister Alfred Khangati said these individuals were being dishonest because most of them had supported the ICC process in Parliament.
“They were loud in saying let’s go to The Hague and now they are accusing Mr Odinga of scheming for the downfall of some of those whose charges have been confirmed by the court,” Mr Khangati said during the burial of Paul Luyali Khaniri, brother to assistant minister George Khaniri at Kapsotik in Vihiga. . . .
At the moment, the mood of Kenyans about their suitability or eligibility for presidency are mixed. Whilst a section of Kenyans argue that they can contest, a good section of people hold the view that the named presidential hopefuls need not even attempt it because the ruling questions their integrity for the post of presidency. The possibility of a legal battle ensuing is thus very high in the event of any attempt to bar them from contesting in the next elections and would require legal and academic brains to scrutinise all the laws of the land in search of legislation that may bar or exonerate the two. Already there are on-going debates about the section of the new constitution that may hold the key to prevent them from vying for presidency. Within the growing debate, chapter six of the new constitution has been prominently quoted in this regard.
The chapter provides for leadership, integrity and specifically requires state officers to bring “honour to the nation and dignity to the office”, and to “promote public confidence in the integrity of the office.” It also outlines the guiding principles of leadership and integrity to include “personal integrity, competence and suitability.” Within the interpretation of this provision, the real contention may emerge around the definition of integrity and its immediate relevance to the context of the ICC. A section of Kenyans have already begun arguing that the provision for integrity relates to economic crimes and not cases such as the ICC thus preparing the ground for what appears to be an emerging heated debate. Another key issue, which will need to be resolved, relates to whether confirmation of charges necessarily constitutes guilt against the backdrop that in reading out the ruling, Judge Trendafilova emphasised that the burden of prove of guilt lies on the prosecutor should the trial commence.
In the event of a court ruling barring or permitting the two to contest the presidency, the emerging culture of constitutionalism and rule of law will be certainly tested as well. Already, the respect surrounding the High Court ruling on the date for the next election has raised hopes about the rule of law, respect for the supremacy of the new constitution, and the independence of the emerging structures of the state. If a court decision bars the two from contesting in the presidency and all avenues for redress get fully utilised, they may probably take the matter to the “courts” of public opinion which may end up securitizing the sensitivities surrounding the loyalty of people them. However, given the stern warning by the Judge during the ruling against inciting people, their leverage in exploiting the passions of ardent supporters is dealt a huge blow.