IMPLICATIONS OF A KENYATTA AND RUTO PRESIDENCY

Saturday, March 2, 2013 - 00:00 -- BY YASH GHAI

This is a shortened version of a report prepared jointly by the Kenyan Section of the International Commission of Jurists, Katiba Institute and The Kenya Human Rights Commission.

I. Background

Uhuru Kenyatta and William Ruto, both of whom face charges of crimes against humanity before the International Criminal Court, have declared that they will seek office as president and deputy president in Kenya’s general election scheduled for March 4, 2013.

II. Introduction

As Kenya gears up for elections in 2013, the politicisation of the cases before the ICC threatens the elections and has become a major electoral issue.

This is because notwithstanding the fact that they face charges before the ICC, two of the accused persons, Uhuru Kenyatta and William Ruto had each maintained that they would run for president in those elections.

This report seeks to answer the question as to what would be the implications of a Kenyatta/Ruto presidency in view of the cases against the two before the ICC.

The report considers that the international implications have been covered well in other literature and while they are also covered in the report, it is the domestic implications that are given the greatest prominence.

The report assumes that if Kenyatta and Ruto became president while facing charges before the ICC, they would choose to continue their cooperation with the court and so would go to The Hague for their trial.

Accordingly, the report does not address what would happen if, as is also possible, they chose not to cooperate with the court having assumed Kenya’s ultimate leadership.

The report endeavour’s to show that, like everybody else that works, the president has a daily job. The report therefore seeks to show the ways in which the president’s daily job would be affected by an ICC trial.

It needs to be pointed out that under both the Rome statute of the ICC, and Kenyan law, one is presumed innocent until proved guilty. Kenyatta and Ruto must be given the full benefit of this legal position, and this report should not be understood as trying in any way to depart from this legal position.

However, the effects that a trial before the ICC would have on their presidency is a practical matter and raises questions that must be fully appreciated by the country as it goes to the elections.

The report is divided into three sections. The first section identifies the president’s daily job, and the attributes that the president is assumed to have under the constitution.

The second part discusses the effects on domestic affairs, if Kenyatta and Ruto were to be elected as president and the third discusses the international implications. There is a brief conclusion that follows at the end of these discussions.

POSSIBLE IMPLICATIONS IF UHURU KENYATTA OR WILLIAM RUTO IS

ELECTED PRESIDENT

Part 2: The Domestic Level

1. The Oath of Office

Article 141 of the constitution provides that the President-elect assumes office by taking and subscribing the oath or affirmation of allegiance, and the oath or affirmation for the execution of the functions of office, as prescribed in the constitution.

Further, article 74, which deals with ethics and integrity, provides that a state officer, who includes the president and deputy president, before assuming a state office, shall take and subscribe the oath or affirmation of office.

Kenya’s elections take place on March 4, 2013 and if there is no person qualified to be declared a winner a runoff will be held between the first two candidates. The runoff is currently scheduled to take place on or about April 10, 2012, the same time that trials for

Kenyatta and Ruto commence in The Hague. If there is no winner in the first round and a runoff is necessary, and if the two or one of them is elected as president or deputy president, during such a runoff, this will lead to difficult choices for the country.

On the one hand a person cannot assume office as president or deputy president before subscribing to an oath of office and on the other hand they will not be in Kenya at that time to take such an oath. The choices will be:

a) To absent themselves from trial so as to take an oath of office;

b) To attend their trial and keep the country waiting for when they will next be available to take their oath of office, and therefore assume office. It follows that the act of setting up a government following the elections will also be delayed as the two cannot legally appoint the government until they are president.

After a highly difficult set of elections, Kenya may remain leaderless if its president has to abandon the election process midway and go to The Hague for trial.

Alternatively, the president defying the ICC will remain in the country to take the oath of office. It is unlikely that he will thereafter submit to trial before the International Criminal Court.

2. On Executive Authority

The constitution provides that the president and the deputy president constitute the executive authority of the government. In practice the executive authority is exercised through the cabinet which is made of the president, deputy president and cabinet secretaries.

By tradition the cabinet meets once every week and provides overall leadership to the entire government. If either Kenyatta or Ruto is elected president or deputy president, he will be forced to be permanently absent from meetings of the cabinet while attending trial in The Hague. This is undesirable and would lead to a situation where the heart of the government will operate without leadership and direction.

3. On the armed forces

The president is the commander-in-chief of the Armed forces. A commander-in-chief is the person exercising supreme command authority of a nation's military forces.

Currently, Kenya’s military is involved in the war against al Shabaab in Somalia. Also, as a result of the vastly deteriorated security situation within Kenya, the military is, for the first time in the history of the country, involved in law enforcement and peacekeeping responsibilities within Kenya.

As part of this there is an on-going security operation led by the military following the attack in Baragoi, Turkana, which led to the massacre of more than 40 police officers.

Also, the military is involved in the pacification of Garissa following the influx of al Shabaab elements who have been responsible for the killing of more than four soldiers in isolated terrorist attacks.

It is fair to say that the situation in relation to the fight against al Shabaab is highly dynamic and although there is increased pacification of lawless Somalia, there is increasing evidence that threats by al Shabaab are increasingly being staged on Kenyan soil, either in Garissa, or within the city of Nairobi.

Since the prevailing security situation remains fluid, it would be desirable that the commander-in–chief remains personally engaged in the management of what may happen.

Secondly, it is simply inconceivable and highly offensive to military honour, that the commander-in-chief is a person facing prosecution in a court of law.

Thirdly, the president is at the heart of the national security architecture. At the lowest level, the security apparatus is the district security committee made of security operatives at that level.

At the highest level is the cabinet security committee, which is chaired by the vice president and includes the Minister for Internal Security, the Minister for Defence, the Minister for Justice and Constitutional Affairs, the Minister for Finance, the Minister for Foreign Affairs, and the Head of the Public Service.

The committee directly advises the president on security matters in the country, and takes overall responsibility for the wellbeing of the country.

As part of this, only the president, with the approval of the National Assembly, can declare a state of emergency. Also, only the president can declare a war.

The power to declare a state of emergency or war is an extension of the president’s role as the commander in chief. This is why the president is at the centre of the national security information.

If the president or the deputy president is to go to The Hague for trial, this will have direct and profound effects on the security situation in the country, as both of them have direct roles in this regard.

4. On Diplomatic Relations

The president is at the heart of diplomatic relations. According to universal diplomatic practice, ambassadors, high commissioners, and other representatives of foreign governments are not authorised to represent their governments until their credentials have been formally presented in person and have been accepted by the host government's head of state.

A diplomat whose credentials are accepted is regarded to have been accredited to the host government and is considered an officer of the host government as well as his own.

This protocol has been codified in the constitution which provides that the president “receives diplomatic and consular representatives.” In practice, when foreign diplomats arrive in Kenya, they remain inactive and cannot meet with any representatives of the Kenya government, until they have presented their credentials to the president.

If the president or the deputy president has to be away for trial, there will be profound and direct effects on diplomatic practice as has been practiced until now.

5. On the president’s role in the legislative process

The president assents to all bills enacted by Parliament before these become law. In 2011, the president assented to 34 bills which thereby became law.

In 2012, the president has so far assented to 31 bills. It is expected that as Kenya implements the constitution, Parliament will remain busy in enacting the necessary legislation to give effect to the constitution.

After the elections in 2013, Parliament will have two chambers, the National Assembly and the Senate, in place of the one chamber that has existed until now.

Since each of the Houses can originate legislation, the legislative agenda may become even busier. Further, as the passing of legislation will involve two houses, rather than one, as has been the case until now, the legislative processes will become longer and more bureaucratic. Presidential assent to bills must be done within 14 days and these must be published within seven days thereafter.

The constitution confers on the president a veto power over bills enacted by Parliament. Where the president declines to assent to a bill, he must refer it back to Parliament explaining the reasons that led to the refusal to assent.

Parliament can override the President’s objections if the Bill, as originally passed, receives the support of 2/3 of the members of the National Assembly, and, in case it has implications on devolution, 2/3 of the members of the Senate.

The power to veto bills is a check on legislative excesses. During his term in office President Mwai Kibaki has exercised this power thrice: in 2009 he queried aspects of the Fiscal Management Act.

The bill had been sponsored in Parliament by a private member. As a result of the president’s interventions, the bill was altered, after which he signed it into law.

In 2012 the president refused to assent to the Finance Bill 2012 in which Members of Parliament had awarded themselves a generous severance pay of Sh.9.3 million each.

Earlier in 2012 the President refused to assent to the Statute Law (Miscellaneous Amendments) Bill 2012 because the bill proposed to amend the Political Parties Act 2011, to allow for continued party hopping by Members of Parliament.

The President observed that the matter of the consequences of defecting from political parties or changing allegiance between parties was already the subject of court petitions further noting that matters which are before the court should not be the subject of legislation by the National Assembly.

It will require an engaged president to support the realisation of the provisions of the constitution as regards the legislative process. This is partly because the timelines for assent and publication of legislation are tight and also because a disengaged president exposes the country to parliamentary tyranny as he cannot exercise the veto power effectively.

As the country continues to implement the new constitution, heavy reliance will continue to be placed on an efficient legislative process.

An absentee president will not add to such efficiency. Also, the fact that the country will have a second chamber of the legislature, creating a new experience in the legislative process makes it more compelling for the president to be fully engaged in this process.

6. On the President’s other relationships with Parliament

Under the constitution, the president will no longer be a Member of Parliament. However, the president still has other relationships with Parliament outside of the legislative process.

The president is required to make an address at the opening of every newly elected Parliament, and at least once a year thereafter. This is the constitutional mechanism that will enable the president to communicate to brief parliament as to his policy intentions and overall leadership direction.

As things stand, there is a danger that if elected as president, Kenyatta or Ruto will not make even the maiden address as he will already be away on trial. Thereafter, the president will remain disconnected with Parliament and there will be a policy and leadership gap resulting from this.

7. On cabinet meetings

The president chairs cabinet meetings once every week. This represents an intensive work programme. In addition, cabinet has several sub-committees of itself which are advisory to the entire cabinet and to the president.

Since the president is at the centre of cabinet affairs, it is unthinkable how cabinet would operate when faced with a long absence of the president from the country.

8. On the devolved government

The president is directly involved in the management of the devolved governments. The president may suspend a county government in an emergency arising out of internal conflict or war; or in any other exceptional circumstances.

A county government can only be suspended if an independent commission of inquiry has investigated allegations against the county government, and the president is satisfied that the allegations are justified and the Senate has authorised the suspension.

Such suspension lasts for only 90 days, and thereafter, there must be elections to constitute a new county government. The Intergovernmental Relations Act puts the president at the centre of the relations between the national and county governments.

It establishes the National and County Government Co-ordinating Summit as the apex body for intergovernmental relations. The summit comprises the president, or in the absence of the president, the deputy president, as the chair, and the governors of the forty-seven counties.

The summit promotes co-operation between the national and county governments and gives policy direction to other coordinating levels such as the Intergovernmental Relations Technical Committee and the sectoral working groups or committees.

Devolution of power, which has led to the creation of 47 counties and their governments, is by far the most ambitious set of provisions in the new constitution.

9. On the nomination, appointment and removal of constitution office holders

Under the former constitution, the appointment of persons to fill most of the important constitution office holders was the sole preserve of the president.

The constitution of Kenya, 2010, makes the appointment of these constitution office holders a collaborative exercise between the president and other organs of the state, including Parliament and the Judicial Service Commission.

For example, the president appoints the chief justice and the deputy chief justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.

Also the constitution expands the category of offices, the filling of which is the subject of this collaborative approach. For example the appointment of members of all the independent commissions established under the constitution involves this special procedure of appointment.

Further, the constitution also makes the removal from office of certain persons that have been appointed to these offices the subject of collaboration between the president and other organs.

For example, the National Assembly may, by resolution, require the president to remove a cabinet secretary from office. The removal process is subject to investigation by, and the recommendation of, a committee of the National Assembly.

An absentee president will be forced to helplessly follow from outside the country, lengthy removal proceedings as they go on in Kenya.

The very nature of the appointment and removal process, therefore, requires significant and direct engagement on the part of the president.

For example, the Independent Office Holders Act, 2010, passed to provide a roadmap for the appointment of the Controller of Budget and the Auditor General, puts the president at the centre of the appointment process by requiring him to commence the appointment process within seven days after the occurrence of a vacancy in these offices.

The president thereafter nominates a candidate for appointment and the National Assembly may reject such a candidate in which case the president is required to name a fresh candidate from among those that had been interviewed. This is demonstrably a very involved process.

A long absence from the country for any reason would have an effect on the capacity to collaborate in the filing of these positions. Also, the removal process involves the personal judgment of the president, who must make the decision that a particular removal is called for.

It would be difficult for a disengaged president to make this decision. Secondly, as vacancies arise all the time, it is not possible to plan around the president’s absence on how these are to be managed.

10. On the administration of Justice

The post-election violence gave rise to horrendous crimes, the bulk of which have unfortunately remained unpunished. While the ICC trials are intended to bring justice in relation to persons regarded as bearing the greatest responsibility for crimes committed during the post-election violence, it is to be expected that national processes will seek accountability against other persons alleged to have committed crimes during the violence.

This is based on the fact that the ICC is a court of last resort and prosecutes only when national processes have failed or are unable to do so.

The Kenya government is current following several prongs, including a task force appointed by the Director of Public Prosecutions, that suggest a commitment to prosecute these crimes.

It would be incongruent for Kenya to pursue national prosecutions against crimes of the post-election violence with the president and deputy president also undergoing trial abroad.

There would be no confidence that the president and deputy president can provide full political support for prosecutions in which they are also part of the accused group.

Another prong that the country has been following in the search for justice is the Truth Justice and Reconciliation Commission whose mandate, deliberately covers the period of the post-election violence.

After more than three years of work, the Commission is currently writing its report which is expected to be released this year. Persons facing charges for post-election violence crimes would not be ideally placed to offer ultimate leadership on the implementation of the report.

Part 3: The International Level

1. International Relations

Kenya strives to be an upright member of the international community and has joined several multilateral arrangements such as the East African Community, the African Union, and the United Nations.

If ICC suspects became president, this will exert strains in the existing foreign relations at several levels. It has been suggested that if the two fail to attend their trial, they will be restricted to travelling only within certain countries in Africa and will be unable to travel outside of the continent for fear of arrest.

This assertion is based on the experiences of Sudanese President, Omar el Bashir, against whom the ICC has issued two arrest warrants and who has had to curtail travel to a few countries for fear of arrest.

The assertion is only partially correct. It is correct in stating that Kenyatta and Ruto will be unable to travel outside of Africa but incorrect in assuming that they can travel to any African country.

In July 2012, the AU summit scheduled to be held in Malawi had to be moved to Addis Ababa, Ethiopia after President Joyce Banda made it clear that her country was unable to host President Bashir as to do so would have violated Malawi’s obligation as a member of the ICC, to arrest the President if he should travel to the country.

Malawi was not the first African country to refuse to host President Bashir for the same reason: South Africa and Botswana have made it clear that should Bashir be found on their soil, he would be arrested and handed over to the ICC.

Also, Uganda has twice failed to assure Bashir of his safety from arrest leading to a decision by him not to travel to Uganda. The fact that Uganda takes seriously her responsibilities under the Rome statute is potentially problematic for Kenya than any other country.

First, the two are contiguous and have very strong economic ties. Second, as both belong to the East African Community and IGAD, it would bring unimaginable difficulties in the two organisations if the relationship between Kenya and Uganda was to become dysfunctional as a result of the cases facing its top leaders.

On its part, the United Nations has a policy not to relate with persons facing charges for international crimes. An opinion issued in 2006 by the UN legal advisor on “Peace and Justice in Post-Conflict Societies—The UN Position” states as follows:

Contacts between UN representatives and person indicted by international criminal jurisdictions holding positions of authority in their respective countries should be limited to what is strictly required for carrying out UN mandated activities.

The presence of any UN representatives in any ceremonial or similar occasion with such individuals should be avoided. When contacts are absolutely necessary, an attempt should be made to interact with non-indicted individuals of the same group or party.

Some western countries have also taken strong individual positions regarding interactions with persons facing charges like those that Kenyatta and Ruto do.

These positions will affect Kenya’s relationship with those countries if either Kenyatta or Ruto becomes president. For example, on August 4, 2011 US President Barack Obama signed a proclamation giving power to the Secretary of State to prevent the entry into the US of persons who participate in serious human rights and humanitarian law and related violations.

The proclamation suspends entry into the United States, as immigrants or non-immigrants, of “any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so”.

While the US has not actually put measures to implement this proclamation in relation to Kenyatta and Ruto, this will almost certainly happen if the two defy the ICC whether or not any of them is elected president.

Some European countries have adopted a similar approach which will severely limit the movement of Kenyatta and Ruto if elected president.

CONCLUSION

Kenya enacted a new constitution in 2010 which is the sum of the collective experiences of the country. The constitution represents shared aspirations as to peace justice and prosperity, but also represents shared aspiration that violence such as has been experienced in Kenya’s politics in the recent past, will be a thing of the past.

The forthcoming elections provide a good opportunity to consolidate the aspirations that made the country vote so overwhelmingly for the new constitution, and also the chance to demonstrate that the country has learnt something from the recent violence.

As demonstrated in the report, the next president of Kenya will have a more demanding role in running the country’s affairs and offering leadership.

After the elections Kenya will re-align its governance structure with the constitution and the newly elected leaders in the categories of county representatives, women representative, senate representative, members of parliament, deputy president and president.

This is a significant shift on governance for the country and therefore equally demanding for the leadership of the country to ensure that the new sructures are implemented effectively as anticipated by the constitution.

It follows that a fully dedicated leadership cannot be overlooked. Also, it is to be hoped that the report of the Truth Justice and Reconciliation Commission will be released soon after the next elections and that the report will set an agenda for justice for victims of the post-election violence, including the provision of reparations.

In such a case, the president and deputy president would be expected to lead the implementation of the agenda. However, it would be practically difficult for them to do so effectively while facing a trial.

Further, victims may not have confidence in the leadership that they will provide. As indicated above national trials for post-election crimes are expected to occur after the next elections.

A president and deputy president facing charges before the ICC would be in a position of conflict if heading a government that is also prosecuting crimes of a kind that the president and deputy president face.

This report affirms the innocence of Kenyatta and Ruto until they are proved guilty upon trial, the fact of being accused persons places practical limitations on their lives which in turn make it impractical that they can run a country.

Also, their status as accused persons places them in positions of conflict with victims of crimes who expect justice, and also with other government functionaries who are required to cooperate in their prosecution and at the same time pay them allegiance as the top leaders of Kenya.

For the reasons canvassed in this report, presidency by persons facing prosecution before the ICC would be inherently problematic. A presidency by Kenyatta is likely to hobble Kenya as it would be impossible to conduct national affairs while the president is away on trial.

In the event of non-cooperation in the trial another chapter of difficulties will be opened for the country. While Kenyans have the right to elect whoever they want, and while it would be necessary to respect democratic choices, this will not take away these well-founded concerns.

- See more at: http://www.the-star.co.ke/news/article-110113/implications-kenyatta-and-ruto-presidency#sthash.LctZQb2q.dpuf