In another ten days, the ICC pre-trial chamber will commence the confirmation hearings against the Ocampo Six. I can bet my one cow that political opportunists will be on high gear, trying to hoodwink Kenyans that if the charges are confirmed then none of the six Kenyans can hold or seek political office, especially with the 2012 General Elections coming up in December, 2012.
There is one undeniable fact you can take to the bank in case you missed the memo. If the six Kenyans are convicted of the charges facing them at the International Criminal Court at The Hague, they will have problems seeking or holding a public office. Even so, this will be after the appeals process has been exhausted and finalized. Before that eventuality, contrary to opinions that have been bandied around in the media, the six are free to seek or hold any office, here in Kenya and anywhere in the world. Rules of natural justice pre-suppose innocence until one is proven guilty. The presumption therefore guarantees Joshua Arap Sang the right to seek to be the next Governor of Nandi County just like Hussein Ali’s right to be the President of the International Postal Union are equally safeguarded.
It is instructive to note that the laws of Kenya, the Constitution and even the Rome Statute itself are all unanimous on the innocent-till-proven-guilty rights of both suspects and accused persons in equal measure. The Rome Statute article 61 (7) (a) states: “The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:
Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; “ Before the confirmation hearing is concluded in the manner above the person is a suspect and then he becomes the accused. Conviction of guilt can only come after a full trial process. The outcome of such trial is then subject to an appeals process at the ICC.
According our own constitution, Section 137 (1) (b), a person qualifies for nomination as a Presidential candidate if he/she is qualified to stand for election as a Member of Parliament. Section 99 (2) (g) further disqualifies one from being member of parliament-and Presidency by extension-if the person is subject to a sentence of imprisonment of at least six months, at the date of registration as a candidate or the date of election. Section 99 (3) then caps it all. It says “A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.”
Once an accused has been charged there is no provision under the constitution or written law that would mandate his removal as a state officer unless it falls under anti-corruption and economic crimes. The Anti-corruption and Economic Crimes Act (cap 65), Section 62 says: (1) A public officer who is charged with corruption or economic crime shall be suspended at half pay, with effect from the date of the charge It goes further to say in 62(3) that the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted. And in deference to the supremacy of the constitution, 62(6) says, “This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated”
From the foregoing, it is succinctly clear that the ICC process, either in the current stage or even in the unlikely event that the charges are confirmed does not bar any of the six from holding or seeking political office. It is further evident that the constitution protects the rights of any of the six to seek any elective office, including the highest office in the land. Our written laws also do not disenfranchise the six, unless on grounds of economic crimes, which in any case are not under the jurisdiction of the International Criminal Court.
I have written in this column before that some Presidential candidates have exhausted all the cards on the table. The only ace card left in their quick sand strategy is to hope that the ICC will get rid of their competitors for the 2012 elections. It is not too difficult to identify these candidates. Their first refuge will be the confirmation of charges. They will take it to rooftops and mountains demanding that their opponents be barred from vying. It is high time that all and sundry realize that they cannot prevail over the will of the people. Whoever will be the 4th President of the Great Republic of Kenya will be determined by the people of Kenya, exercising their democratic suffrage through the ballot box, not through Mickey mouse tactics like misinforming Kenyans on the ICC process
The author is the spokesman of the Party of National Unity. The views expressed herein are his own.
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