Saturday, October 22, 2011

Proceedings against the Ocampo 6 do not bar anyone contesting presidency



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By ONYANGO OLOO
Posted  Thursday, October 20  2011 at  17:58
The Supreme Court is set to determine which date Kenya will hold it first General Election under the new Constitution. Whichever way it goes, we are sure to hold elections in under 18 months.
Thus, with the elections around the corner and two prominent Kenyans facing charges at the ICC, the question on people’s lips is whether Mr Uhuru Kenyatta and Mr Willam Ruto will be eligible to contest the presidency.
The situation is not helped by the fact that their supporters and detractors as well as ordinary commentators have tended to allude to the pair’s plan ‘B’ should charges against them be confirmed.
To compound the situation further, close allies of the two have, in commentaries, both in print and social media, asserted the existence of elaborate plans to ensure someone else besides the perceived front-runner, Prime Minister Raila Odinga, ascends to the presidency should their preferred candidates be locked out.
This has directly implied that a confirmation against the two definitely seals their fate in so far as the presidential contest is concerned.
But a look at the applicable law seems to suggest otherwise. The Rome Statute that established the ICC has been ratified and domesticated by Kenya and is therefore part of our laws. It is under this statute that the six have been charged.
Nowhere in this body of law is anybody precluded from contesting any elections on the basis that he or she is facing criminal charges.
Besides, the ICC has the pre-trial chamber, the trial chamber and the appellate chamber, implying that even upon confirmation or conviction, one would still have a right to appeal the decision.
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Locally, the proponents of the theory that the fate of the two will be sealed with the confirmation of the charges have always sought refuge in Chapter Six of the Constitution, and the Anti-Corruption and Economic Crimes Act.
The former deals with matters of ethics and integrity while the latter has jurisdiction over crimes of an economic nature.
Under the former, one is expected to resign from office once charged with the offences, and may even be barred from contesting or holding public office once convicted. The two are not facing any charges at The Hague that relate to this Act.
This section deals only with matters of personal integrity, competence and suitability to hold office, which matters are not before the ICC for trial.
Were the charges facing the Ocampo Six to be construed as impacting on the suitability of the six to hold public office, one would still have to deal with the self-executing nature of this chapter which provides for disciplinary measures for those already holding office before being disqualified from holding any such office as set out in article 75.
Barring the above, the import of article 80 is that legislation to be made under it refers to persons already holding office. None of the two is president. If they were, impeachment proceedings would have to commence immediately.
The clearest indication that the two are not barred from contesting the presidency or any other seat is the internationally recognised right of presumption of innocence until proven otherwise. The Rome Statute provides for it and the Constitution provides for it under article 50(2).

Consequently, Chapter Six is totally inapplicable to the two. To the contrary, the chapter would bar a leading presidential candidate, who has always presented himself as holding certain academic credentials it is proved to be false; and one who publicly admits that he attempted to overthrow a lawfully established government through violent means.
It may bar an MP who fled the country on false mileage claims, and one who was struck off the Roll by a professional body. Finally, the chapter outrightly bars an MP who has been convicted of soliciting and receiving a bribe.
If indictment in court precluded one from contesting the presidency or any other seat for that matter, what would prevent a malicious Head of State or any other leader fabricating charges against their opponents?
Anybody who wants to be president must work hard for it and persuade Kenyans that he deserves this high office.

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