Success in upcoming election would not block Hague charges against two presidential hopefuls.
International legal experts say that if either of two indicted Kenyan officials are elected president next March, they will still have to stand trial at the International Criminal Court, ICC. That raises questions about how a president could carry out his official duties while making court appearances in the Hague.
Deputy Prime Minister Uhuru Kenyatta and member of parliament William Ruto are both standing for presidential office as they await trial for crimes against humanity in The Hague.
Together with radio journalist Joshua Arap Sang and former civil service chief Francis Muthaura, they face charges of orchestrating the violence which engulfed Kenya after the disputed 2007 presidential election. More than 1,100 people were killed as fighting erupted along ethnic lines.
The election is scheduled for March 4, 2013. If the outcome is so close that it requires a run-off vote, that will take place on April 11 - the day Kenyatta is due to appear before the ICC.
A recent opinion survey conducted by pollster Ipsos Synovate suggested that the current prime minister Raila Odinga would defeat Kenyatta in a first round of voting, but that the latter would win if it came to a run-off.
ICC Prosecutor Fatou Bensouda has said that while all decisions about the trial calendar lie in the hands of the court's judges, her office intends to stick to the dates that have been set for the trial.
"This [election] process going on is a political one. Let the political process go on, but the ICC judicial process will also go on and the calendar that has been set by the judges will also be followed," Bensouda told journalists at a press conference in Nairobi on October 22.
In remarks made three days later during her Kenyan trip, Bensouda commented on how a request to defer the trials would be dealt with.
"I do not anticipate that," she told journalists. "We will see on the merits of the request. We will assess [it] when the time comes."
The four Kenyan suspects are the first the ICC has permitted to remain free ahead of trial. (See Kenyan Suspects to Remain Free During ICC Trials.) Unlike, say, Sudan, which has refused to hand over its president, Omar al-Bashir, to the ICC, Kenya is a signatory to the court's founding Rome Statute and has cooperated with the investigation and indictment processes.
Both Kenyatta and Ruto have indicated that, if elected, they would seek leave of absence from ICC proceedings, and only appear in the courtroom when required.
"[The] ICC, we believe, will grant us bail so that we can be in court only when they need personal accounts," Ruto said. "Therefore, we will continue with nation-building, and nothing much will change as we go through trials."
It is, however, unclear what position ICC judges will take on allowing Ruto, Kenyatta or the other two defendants to be absent during proceedings.
According to Kennedy Akide of Nairobi law firm Akide & Company, "The accused must give very good reasons why they would not appear. Whether the court would consider Uhuru or Ruto's presidency as convincing enough, I cannot tell."
In theory, a winning candidate might seek to invoke the immunity from prosecution that is granted to a head of state by Kenya's constitution.
In the case of Sudan, the ICC has ruled that President Bashir cannot cite immunity. In any case, Kenya is a state party to the court and accepts its jurisdiction, including an obligation to hand over any suspect, even the president.
Kenya's protects the president from proceedings in any court of law as long as he or she is in office, but not from legal action instituted under the terms of an international treaty.
"All state parties have by way of ratifying [the ICC treaty] the Rome Statute and therefore consenting to its article 27 in advance waived the immunities of their head of states," said Brenda Hollis, the lead prosecutor in the trial of former Liberian president Charles Taylor at the Special Court for Sierra Leone, speaking at a conference held in Nuremberg in October to mark the ICC's tenth anniversary. "Immunity is [not something] one has to consider if it is about the prosecution by the ICC of a head of state or a former head of a state which is a state party."
"There is no immunity for international crimes at the ICC. The judicial calendar at the court will not be altered. The ICC judges are not bound by any political processes," Bensouda said at the Nairobi press conference.
Ruto and Kenyatta have said they would not seek to derail the ICC process if they were elected.
"We have absolutely no intention to interfere with [the] ICC process, absolutely none. My quest for the presidency has nothing to do with ICC process," Ruto told the BBC's Hard Talk programme on October 8. "Nobody should ever think that we are running for president merely because we are suspects. We are running because we are leaders and we have a contribution to make to this country at that highest level."
IMPEACHMENT A REMOTE POSSIBILITY
Kenyatta and Ruto need to clear one hurdle before they can go forward to the election - a petition which is now pending before the Kenyan high court, and which would bar them standing because of the ICC charges. The petition was filed by the Kenya Youth Parliament, the Kenya Youth League and a group of 230 displaced people who claim the candidates' presidential bids contravene the constitution on grounds of integrity.
Should either man become president, he could in theory face impeachment proceedings.
The chairman of the Law Society of Kenya, Erick Mutua, notes that the constitution allows the head of state to be impeached "where there are serious reasons for believing that the president has committed a crime under national or international law".
"There are possibilities that [defendants] would have to stay at The Hague for months during trial. If [proceedings] impede them from performing their functions like chairing cabinet meetings, then the Senate would be compelled to step in and initiate their removal," Mutua said.
Others say the chances of this actually happening are remote, as one-third of the National Assembly would have to vote in favour of initiating impeachment proceedings.
Akide notes that as president, either man would exert significant control over both the National Assembly and parliament's upper house, the Senate.
"It would be practically difficult to force them out of office through impeachment if [either was] elected president," he said.
More broadly, there is some unease at the prospect of a head of state who is also standing trial for crimes against humanity.
Last week, former United Nations Secretary General Kofi Annan, who mediated an end to the post-election violence in 2008, warned that Kenya's relationship with the international community would be strained if either Ruto or Kenyatta were to become president.
Both men hit back angrily, accusing Annan of undermining their presidential bids.
"I am not asking to be elected president of the United States or Germany," Uhuru said. "I want to contest for the presidency of Kenya. If some people feel they don't want to work with me, so be it. There are many friends across the globe. As long as Africa is fine, that's all. I have not heard any of our neighbours raise concerns about my candidature."
The writer is an IWPR contributor in Nairobi.