Imagine it’s the second anniversary of the Jubilee government in office and the ICC finds both President Uhuru Kenyatta and Deputy President William Ruto guilty of having committed crimes against humanity as charged.
That’s not a far-fetched scenario but one likely to happen, even though informed money is on this not happening. What then? What will happen were that to be the case?
To begin with, as in all criminal proceedings, a conviction by a trial judge or jury is not always in by itself the end of the matter as those found guilty are entitled to and often do file appeals challenging it.
It’ll not be any different in Uhuru and Ruto’s cases. If either or both are convicted, expect them to appeal such a verdict. That’s the easy part to predict.
What happens to their incumbency in view of such a conviction, even as they appeal, is altogether a different and much harder circumstance to predict with precision. But one can reasonably predict various scenarios that could ensue with various degrees of certainty.
For example, one can assume that already, someone has drafted a petition ready to be filed five minutes after either or both of these leaders are found guilty, challenging their incumbency in light of Chapter Six of the constitution which does not allow holding of office by anyone convicted as such.
The only reason it may take longer than five minutes to file the petition is if there is unusual human traffic on the streets preventing fast movement by those carrying the petitions to court from a nearby office or bad timing of the verdicts such that the registrar is not open for filing when the decision is made.
The latter will, however, be unlikely for the ICC judges rendering the decision will be aware of the timing factor. Filing a petition, however, is one thing but getting a desired outcome is quite another as Kenyans are now painfully aware thanks to the Supreme Court’s intellectually shallow and embarrassing decision in the Raila and AfriCog decisions.
How will the Supreme Court rule in such obviously equally important petition challenging Uhuru and Ruto’s incumbency if filed?
In the run-up to elections, there was great anticipation that both Uhuru and Ruto would have been barred to vie for the presidency under Chapter Six of our constitution on account of their being charged at the ICC for commission of crimes against humanity.
Indeed, a petition was filed seeking just such an order from the high court but a five-judge bench ruled that both Uhuru and Ruto were free to seek any elective seat in the then ensuing March 4 elections.
The judges ruled that the high court did not have jurisdiction to hear matters on qualification or disqualification of presidential aspirants, noting that only the Supreme Court had such jurisdiction.
The ruling also added that since Kenya's election commission had already passed Kenyatta and Ruto as fit to stand, any ruling "would end up usurping" the powers of the commission.
Coming so close as it did to the elections, the judges’ ruling effectively cleared Uhuru and Ruto to vie for public office without the Supreme Court saying a word about their suitability to vie under the constitution.
What would have happened had the case reached the Supreme Court? Would the Supreme Court have cleared or barred the duo from vying?
These are easy questions to answer in hindsight, especially given the court’s dismissal of Raila and AfriCog petitions; of course, yes!
Could such a decision by the Supreme Court have been subjected to ridicule or condemnation? Probably and very likely. The difference between the decision to allow both Uhuru and Ruto to vie and the decision dismissing Raila and AfriCog’s petition is the former finds firm footing in logic and legal reasoning while the latter does not.
What about looking forward; how will the Supreme Court rule in a petition challenging the suitability of Uhuru or Ruto or both holding public office if convicted at the Hague?
This will depend on what the Supreme Court wishes to do; if the desire is to redeem itself from the embarrassing decision in the Raila and AfriCog decisions, the court will promptly declare that anyone committed of any criminal offence, let alone conviction for the serious crimes against humanity is not permitted to hold public office under Chapter Six of the news constitution.
Such a ruling will elicit only two responses: swift condemnation from the Jubilee crowd led by Uhuru and Ruto and nothing but praise by the Cord team led by Raila.
In a very strange but real outcome, however, the Supreme Court will in that one decision reinstate its authority as an independent, impartial body and those who condemned it for its decision in the Raila and AfriCog petitions will quickly find forgiveness and understanding as the Jubilee crowd wallows in bitterness. There will be a marked difference between the two rulings, however.
First, the Supreme Court will no doubt be standing on firm constitutional and international law in rendering a ruling that one convicted of a crime, let alone the serious crimes Uhuru and Ruto face cannot hold public office under Chapter Six; in fact, the Jubilee crowd may publicly condemn the decision but if they were to be intellectually honest, they, too, cannot but agree with such a ruling for it would be the right one even applying common sense and not law.
That cannot be said about the dismissal of the Raila and AfriCog’s decision; no one being intellectually honest can say that decision was the right one even applying common sense and not the law but it’s wrong applying either or both.
Second—and this is really a major distinction with profound implications; while Raila could not do anything after the Supreme Court dismissed his petition, Uhuru can.
He can simply ignore it with a “mta do” attitude, which this writer is certain there is nothing we, indeed, can do about that. Such a defiance will only be true and possible in the case of Uhuru being convicted and the Supreme Court finding him ineligible to hold office under Chapter Six, not in Ruto’s case.
Ruto cannot ignore a ruling finding that he cannot hold office upon conviction; in fact, were that to be the case, no one would be more gleeful than Uhuru and Co who would only be happy to help Ruto pack and immediately vacate his office.
The victory will be complete then as KANU takes full and complete control of the Executive as whoever serves next as Deputy will be nothing but a figure-head.
This, then, would be the scenario in which the duo is convicted, a petition is filed challenging their holding office under such circumstances and the Supreme Court renders a decision with a view of redeeming itself from the intellectually shallow and embarrassing decision in the Raila and AfriCog decisions.
Were the circumstances to be the same but the Supreme Court wished not to redeem itself but to dig itself deeper into where it finds itself today, the court will simply hold that such a challenge is premature as those convicted would appeal.
The court would cite the constitution itself which provides that the integrity provisions do not come into play until one has exhausted all appeals.
Their decision will be arguably in sound legal footing except it would infuriate even more and create more tensions. There would be no telling what the outcome would be short of violence, not the least being a thirst to “throw out the bums” as the Americans would say. Interesting days lie ahead, indeed.
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