WHY RUTO AND UHURU WILL NOT BE ON THE BALLOT PAPER
“ It would therefore be true to say that the suspended judge Nancy Barasa was right in refusing to be searched by Kerubo as there is no obligation to respect that which is not legal. We could validly argue that when she pinched Kerubo’s nose and said “you should know people” she actually was defending herself from an illegal search and she actually meant “you should know the law”, But with this vacuum existent, the country suspended her from the office. What justification would be there for a country to say its legal-moral threshold is that when a deputy chief justice is suspected to have pinched a guard’s nose they are suspended but when a Deputy prime minister is accused of Murder, Rape and other inhumane acts they are allowed to seek the presidency.”
In its morning bulletin on the Monday 22nd May 2012, Iranian Press TV ran an item: ICC suspect launches a Political Party. Well, the caption is entirely true. The Kenyan Deputy Prime Minister Uhuru Kenyatta is an ICC suspect and he had launched a political party. All I thought was, such a caption is undeserving of my country, but what I dreaded most is ICC suspect Sworn in as President.
In August 2011, writing immediately after The ICC prosecutor revealed the Identity of the six Kenyans he was pursuing, Moses Kuria then PNU spokesperson alluded to there being no law that barred the suspects from seeking elective office. He alluded, largely to a legal axiom that one isinnocent until proven guilty, and Kenyans facing trial in the ICC should be treated as such, even in regard to their political ambitions. In particular he referred the Country to Article 99 (3) which provides that a person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.
Before delving further into the law, it appears interesting that this article was not in the Harmonized Draft or any other previous drafts including the Wako Draft that was put to a referendum in 2005, and only appeared first after the politician led Naivasha Consensus building retreat. It is understood that the traditional trading occurred within the lodge having been initiated by those who dreaded an imminent prosecution.
In justifying its inclusion, the Abdikadir led committee suggested that the intention was to curb the historically alive tendency of instigating prosecutions against political rivals to lock them out of the race. A former CEO Commissioner confirmed a struggle by the commission to expunge the article, but they were restrained so as to achieve the needed political will for the draft to be ratified. Well, this is not important as such as the article was sacredly ratified as part of the greater Constitution. The tough question which the country needs address itself to, is whether this vacuum in the law would allow the candidature of Ruto and Uhuru for President and Joshua Sang for Senator.
The true legally and morally justifiable position is that the three are ineligible to contest for elective offices until they are vindicated by through a proper trial. The dismissal of their challenge on the Jurisdiction of the ICC yesterday further seals the fate of their candidature at least for the coming election.
On a moral ground, leadership and the concept of a “good citizen” are inseparable. Good in our sense is a legal vindication that the character of the person seeking the office is worth. The question of leadership is an issue of public interest, which should at all instances be differentiated from public opinion. The laws of Kenya guard the collective interest of the country and this has sometimes gone against public opinion. The political game that was being played by slogans like “let the people decide” was basically invoking extra legal considerations after the suspects were aware that neither the law nor the facts were for them.
The Construction of a Constitution would traditionally be guided by the nemo aliquam partem recte intelligere potest antequam totum perlegita latin maxim that suggests that no one can understand a part, unless he has read the whole. To know the true position of the law, one would have to go beyond articles of convenience and regard the Constitution in entirety.
The Kenya Constitution 2010 clearly outlines the chief principles that would guide its construction. Article 259, suggests among other things that the constitution must be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance. Such a proposition is again found in Article 10. Clearly, a dual appearance of the same principle in the Kenyan Constitution is not a coincidence. It is an emphasis and any interpretation must objectively satisfy this criterion or else it would be a breach of the law.
One of the arch purposes of this constitution is to establish a leadership that is not tainted. As such, it establishes several scenarios when it is unfit for a public officer to continue holding office. In Regard to the presidency, such would be found in Article 145 (1) which suggests that a president could be impeached where there are “serious” reasons for believing that a president has committed a crime under national or international law. The constitution equally provides mechanisms for impeachment, but shelving the procedure, the basic fact is that where there is reason to believe that a crime has been committed by a public office holder, the holder falls short of the glory of a public office. Emphasis here must be that the substance of the crime does not lie in the procedure, but in the fact of a “serious” indication that such a crime could have been committed.
The Purpose of this clause is to emphasize that no one is above the law, and that a “criminal or a suspected criminal is unfit to hold the presidency” note the constitution uses the phrase “serious reasons for believing that a president has committed a crime” It does not refer to a conviction. Therefore in a hypothetical scenario, a person who a Kenya Human Rights Commission has implicated, who the Waki Commission has implicated, Who the NSIS instruments implicate, upon these implications, an ICC prosecutor commissions independent investigation and satisfies himself that crimes could have been committed, and this evidence is placed before a pre trial chamber which agrees that indeed there could have been a commission of crime, I am more inclined to aver that the constitutional threshold of serious would have been met, and as such, procedure notwithstanding, the president would have to vacate the office.
Article 50 (2) a. of The Constitution which assures presumption of innocence until the contrary is proven. There have therefore been calls that the three Kenyans ought be treated as such and allowed to contest. What these calls ignore is the fact that within the practice of the law, there arise several scenarios that waive the presumption of innocence and even shift the burden from the accuser to the accused. For instance, there is an implicit waiver of this presumption attached to the wording of the article 145 (1) when it fails to mention a conviction but only refers to “serious reasons to believe”. This construction is not an inconsistency as constitutional inconsistencies are apparent; in reality all provisions in the constitution serve the greater intention. Just as there is need to ensure sanctity in leadership, there is an equal need to protect a citizen from being ostracized by virtue of being under trial. Stretching this however, to the extent of justifying a candidacy of a suspect is an ultra-liberal and unjustifiably generous construction: an attempt to use the law to serve sectarian interest I would posit.
A question that follows therefore is, if one is unfit to hold the presidency as per the constitution, can he vie for the presidency? Clearly, there is no provision in the constitution expressly touching on this matter. The reason for the silence is very clear; The Kenyan Constitution was not drafted for the candidature of Sang. It would therefore border an absurdity that such a vacuum could endorse a situation that ultimately creates an illegality. If an individual’s presidency would be a constitutional breach, there is no merit whatsoever to allow its possibility.
Allowing that possibility is in itself a usurpation of the law; you cannot create a situation that would breach a law without being in breach of the law. It would be like the country, or the vetting commission is holding the constitution in contempt! The apparent lenience in the provisions, such as the aforementioned article 99 (3) was never intended to shield the accused from being locked out of a political race. We must be strictly aware of the fact that the drafters of the constitution were making a law for the country; they were never advocates of political interest or guardians of individual ambitions. However, the drafters had to reasonably curb a possibility where legal institutions could be used to lock out competition in politics. They therefore had to assure everyone a fair chance. If a situation arises, and it is apparent that a crime was orchestrated to lock someone out of a presidency, then the courts would liberally extent this provision to salvage the situation.
It is important to regard our history when we look at the constitution. We were writing a law that would further our vision but equally suppress the noxious nature of past regimes. Such included use of judicial institutions as a field for vendetta and to suppress dissenting voices. It was there a justified measure that legal processes in regard to political offices be broadened for openness.
There is no country that has ever legislated on everything, for instance, the law regulating Search of Persons in this country does not have provisions for private security persons to conduct personal searches. It would be legally correct therefore to say that the search on the person before being admitted to a building has no legal basis.
It would therefore be true to say that the suspended judge Nancy Barasa was right in refusing to be searched by Kerubo as there is no obligation to respect that which is not legal. We could validly argue that when she pinched Kerubo’s nose and said “you should know people” she actually was defending herself from an illegal search and she actually meant “you should know the law”, But with this vacuum existent, the country suspended her from the office. What justification would be there for a country to say its legal-moral threshold is that when a deputy chief justice is suspected to have pinched a guard’s nose they are suspended but when a Deputy prime minister is accused of Murder, Rape and other inhumane acts they are allowed to seek the presidency.
We have to be true to the unhindered realization of good governance. Uhuru, Ruto and Sang’s candidature are an invalidation of this quest. They must not vie for one reason; respect for the rule of law. If they are vindicated they will contest, and that would show their true commitment to respect the Constitution.
And by the way, I have to start thinking of who to give my vote, it was meant for Ruto!
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