Deputy Prime Minister and Minister for Finance Uhuru Kenyatta (left) William Ruto (right). PHOTO/ Fredrick Onyango
By KIPCHUMBA SOME ksome@nationmedia.co.ke
Posted Saturday, September 3 2011 at 22:00
Posted Saturday, September 3 2011 at 22:00
IN SUMMARY
- Lawyers say the constitutional requirement of integrity and also morality could block them from running for president if their cases are confirmed at The Hague
Will post-election violence suspects facing confirmation hearings at The Hague be eligible to run for president if the court rules that the cases proceed to full trial?
This is the big question lawyers are grappling with as the process of the confirmation of the charges facing the six suspects proceeds at the International Criminal Court.
The question is important because two of the suspects — Eldoret North MP William Ruto and Deputy Prime Minister and Finance minister Uhuru Kenyatta — recently argued that their cases would not bar them from seeking the presidency even if the charges against them are confirmed.
The Sunday Nation sought the opinion of lawyers on the possibility of the two being eligible to stand for the presidency in case the charges against them are confirmed. And what emerged is a legal complex of “ifs” and dozen probabilities rather than a straightforward answer.
The two suspects base their arguments on two fundamental points: that they are innocent until proven guilty and that their cases are not about economic crimes. If they were, the Anti-Corruption and Economics Crimes Act of 2003 would stand in their way.
While admitting that the two have legitimate legal backing, Dr Godfrey Musila, an international criminal lawyer, argued that in light of the gravity of the charges they face, their argument is rather weak.
“These are the most serious crimes in the world, even more serious than corruption. If the law requires one to step aside because of corruption charges, what about crimes against humanity which involve the loss of life?” he asked.
Ms Atsango Chesoni, executive director of the Kenya Human Rights Commission, holds the same view: “It will be an absurdity for them to argue that they cannot step down yet they are suspected of international crimes against humanity”.
In fact, she argues, the suspects should resign from the public posts they currently hold. “I fail to understand how a person will argue that they do not violate the chapter on integrity given the charges they are facing. A State official embodies and projects the ideals of the office he holds and the country both at home and abroad. So exactly what kind of ideals will these suspects be projecting if they are charged?” she asked.
If the charges against them are confirmed, their cases might run the length of the election year or beyond. But the Constitution is rather vague on whether candidates with on-going cases can run for office.
The Rome Statute that created the ICC does not set regulations on whether suspects or accused persons can seek public office, leaving their fate to national constitutions.
Pointing to Chapter Six of the new Constitution on Leadership and Integrity, Ms Chesoni, however, argues that there are no complexities about it. “In my view, the law is quite straightforward on the matter. If you are facing such charges, you have no business offering yourself for public office.”
Article 75(1) (c) of the chapter on Leadership and Integrity states that “a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids demeaning the office the officer holds.”
This, Ms Chesoni, and Mr Apollo Mboya, a Law Society of Kenya council member, argue is enough to prevent the suspects from seeking higher office.
But how exactly do you interpret integrity? “One could argue that it means having never been charged in a court of law. It could also be interpreted as having not done anything that harms another human being. It will all depend on the particular judge handling the case,” said Dr Musila.
A real conundrum, he says, would arise should either of the two suspects win the presidency and yet finally be found guilty. With Sudan President Omar al Bashir, who is also wanted by the ICC, in mind the obvious question will be: will the country function effectively with a commander-in-chief facing charges for international crimes?
However, the execution of this provision is fraught with challenges. Such a Motion can only succeed if more than two-thirds of members of the National Assembly support it. The president could marshal enough support to defeat such a Motion.In such a situation, Dr Musila points to the provisions on the impeachment of the president. Article 145 (b) of the Constitution provides that the president can be impeached “where there are serious reasons for believing that the president has committed a crime under national or international law”.
But beyond the straight and narrow of the law, lawyer Eric Ng’eno argues that the morality of a suspect holding the highest office in the land while facing such grave charges is an equally valid and powerful counter-argument.
“Standard practice in established democracies requires one to resign or refrain from seeking higher office if there are questions over their heads. Can we have leaders resigning simply because their moral standing has been questioned?”
In the absence of clear-cut legal answers to the issue, Mr Mboya throws the question back to the public. “Ultimately it is up to the electorate to decide the kind of leaders they want. It is not so much about what the law says at this moment but qualities they want to see in their leaders.”
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