The intention of two of the ICC suspects -William Ruto and Uhuru Kenyatta- to contest the presidency in the coming elections has elicited fierce debate from all sectors of the Kenyan society concerning their eligibility to run in the election.
It has been argued that the crimes against humanity charges they are facing means they have failed the integrity test set by the constitution. This view has been strengthened by the confirmation of the charges by the ICC pretrial chamber. Calls that the two were ineligible to contest in an election started way before the pretrial chamber confirmed the charges against only four of the six initial suspects.
This debate, although healthy, has been clouded by political undertones. A sober view of the law reveals that there is nothing in the Constitution barring the two from seeking political office. Chapter Six sets a high threshold for ethical conduct for persons seeking public office. But there is nothing in the chapter that stops them from contesting any office.
The most relevant provision is Article 99 on eligibility to run for Parliament which also applies to candidates seeking the presidency. The article provides that one cannot contest an election if he has been found, in accordance with any law, to have contravened the provisions of Chapter Six. There is an additional provision that the person thus found must have exhausted all avenues of appeal and is still found to have contravened the chapter.
This raises two issues with regards to the Hague suspects. First, they have not been found, in accordance with any law, to have contravened Chapter Six. Those accusing them of contravening Chapter Six are not pointing to any particular provision of the chapter which they have contravened. They merely say that the suspects have failed the integrity test.
Secondly, the four individuals are merely suspects at this stage. Both the ICC Statute and our constitution guarantee every suspect the right to a fair trial. Fair trial demands that one is presumed innocent until proven guilty. Thus, even though the pretrial chamber confirmed the charges against the four, they are still presumed innocent until at the conclusion of the trial whereupon they may be convicted or let free.
What if we had hung Henry Kosgey and Major General Hussein Ali, only to be told later that they had no case to answer? How would we compensate them for the injustice suffered by our premature action? What if we hung William Ruto and Uhuru Kenyatta right now, then it turns out at the end of the trial that they are found innocent? How will we compensate them for the injustice? But that is just one side of the coin.
The other side relates to what will happen if one of the suspects wins the presidency. Our new constitution provides that the President may be impeached if there are serious reasons for believing that the President has committed a crime under national or international law. Whereas Article 99 on eligibility to contest provides that one must be found guilty even after appeal, Article 145 on impeachment merely provides that one may be impeached where there are serious reasons to believe he committed a crime. It does not even mention the seriousness of the crimes, thus, a President may be impeached for committing even the smallest of the crimes in our statute books.
What's more important, however, is the threshold. It talks about serious reasons to believe. This does not envision any full trial going to conviction. As such, the mere confirmation of charges that has been done against the Hague suspects may be sufficient reason to impeach one of them if he wins the presidency. However, before voting on the impeachment motion the Senate is required to investigate whether the charges are substantiated. But this should not be a difficult task given that the pretrial chamber of the Hague has already confirmed the charges after a lengthy hearing. That should be enough serious reason to believe the suspects committed the crimes.
As such, the moment a Hague suspect wins the Presidency he will be liable for impeachment, as long as the impeachment motion is passed by two thirds majority of the Senate. In the recently concluded trial preparation hearings at the Hague, the two suspects, while requesting the ICC to schedule the hearings after the general elections, gave an undertaking that they will cooperate with the court in attendance regardless of the outcome of the election.
We can only hope that if one of them wins the election then he will not use the presidency to shield himself from arrest and ignore summons to attend the hearings. It may thus be in the interests of the country that the Senate passes an impeachment motion, so that we do not end up like the Sudan whose President is facing arrest so he can be tried at the Hague.
Kennedy Ogutu, a Nairobi-based lawyer.