The reality of the possible absence of President Uhuru Kenyatta and his Deputy William Ruto for a month is causing anxiety in government circles.
The country is staring at a power vacuum when the two leaders accused of crimes against humanity pitch tent in The Netherlands for trial.
The trial of Mr Ruto at the International Criminal Court (ICC) starts on Tuesday, to be followed a month later by that of President Kenyatta. Yesterday, Mr Kenyatta said there was no need to panic over his absence and called for calm.
According to a trial timetable by ICC Prosecutor Fatou Bensouda, Mr Kenyatta and Mr Ruto will appear before the judges between December 12 and December 13. While the deputy president’s case will be heard during the day, the President will defend himself in the afternoon. Journalist Joshua arap Sang is accused alongside Mr Ruto.
The headache now is how the two will run the country and attend the court sessions, especially during national events such as Jamhuri Day which falls on December 12. The climax of the events will be the Kenya @50 Jubilee celebrations.
This is the first time in international criminal law where a democratically elected sitting president — and his deputy — are being tried at the same time.
The Jubilee coalition is also said to be concerned about the possible replay of images of the post-election violence during the ICC trials from hot spots like Eldoret, Nakuru and Naivasha, whose residents voted together in the March 4 election.
It is significant that the government Saturday closed camps for the internally displaced, just two days before the start of the Ruto trial.
Senate Majority Leader Kithure Kindiki yesterday downplayed the effect of Bensouda’s timetable on Mr Kenyatta and Mr Ruto.
“The ICC calendar is only interim,” said Prof Kindiki, who was part of Mr Ruto’s defence team during the confirmation-of-charges hearing.
“That schedule can be varied on application by any party, including the defence. We will cross the bridge when we get there,” he told Sunday Nation.
But Jubilee strategist Moses Kuria argues that the presence of the two at The Hague while the country is celebrating 50 years of independence will be “an insult to our nationhood”.
“We are encouraging them not to fly to the ICC. The prosecutor should have allowed a negotiated settlement, which would have allowed for pursuit of justice and running of government by allowing the cases to be heard in Arusha,” said Mr Kuria.
President Kenyatta and Mr Ruto have consistently maintained they will cooperate with the court.
The prosecution on Friday opposed a proposal by the President to delay the trial until January to allow him time to examine more evidence relating to mobile phone data. President Kenyatta has also asked to be exempted from physically attending all court sessions.
However, Ms Bensouda rejected the argument, saying that President Kenyatta should be treated like any other suspect before the court.
“Granting such a request would violate the very bedrock of the legal principle to treat all persons equally,” she said during a preparatory conference.
Asked about the matter before the March 4 elections, Mr Kenyatta and Mr Ruto were categorical that ICC trials would not hinder their operations if elected to State House. The “digital” duo even quipped that they could use online technology such as Skype to govern.
But key allies of the two led by Majority Leader Aden Duale on Thursday rallied Parliament to pass a resolution allowing the government to start a process for Kenya to withdraw from the Rome Statute, which established the ICC.
Article 127 of the Statute allows a state to withdraw, even though this does not affect ongoing cases.
“Its withdrawal shall not affect any cooperation with the court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the court prior to the date on which the withdrawal became effective,” it says.
The tone of the Thursday debate reinforced the entrenched, but largely unarticulated standpoint, within the Jubilee coalition that the election of the two on March 4 was a statement of their innocence — a referendum of sorts.
The other argument is that Mr Kenyatta’s Kikuyu and Mr Ruto’s Kalenjin communities that were most affected by the violence have since “reconciled”, meaning the ICC case against their leaders has no basis. Away from Parliament and The Hague, the National Conservative Forum, a lobby for a section of lawyers, moved to the High Court asking that President Kenyatta and Mr Ruto be barred from travelling to The Hague to attend their trials until they finish their five-year term.
This, they argued, will avert a power vacuum.
“The court should issue a declaration that when the President and the Deputy President are out of the country at the same time, there shall be a vacuum in governance on the part of the Executive and this shall occasion an imbalance in power,” Dr John Khaminwa argued in the lobby’s unsuccessful bid.
A report by a group of NGOs released before the March elections had singled out the ICC as a possible challenge to the Uhuru-Ruto administration.
The overriding conclusion of the report released last December was that Kenya could be rendered “leaderless” with an “absentee presidency” while the leaders attend trials at The Hague if elected.
The report by the International Commission of Jurists (Kenya), Katiba Institute and The Kenya Human Rights Commission focused largely on the domestic consequences of an Uhuru-Ruto victory in view of the ICC trials. The report cautioned that given the requirement that the two be present in court, they will be forced to be permanently absent from Cabinet meetings.
“Since the President is at the centre of Cabinet affairs, it is unthinkable how the Cabinet would operate when faced with a long absence of the President from the country.”
The 2010 Constitution assigns the presidency extra roles in legislation both in arliament and Senate where he is expected to assent Bills into law.
The presidential assent to Bills must be done within 14 days and these must be published within.
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