The ICC cases are back in the news. TheInternational Courtruled that Deputy President William Ruto must stay at the Hague during the entire course of his case; unless two appeals he has filed are determined otherwise. As far as the ICC is concerned Ruto knew he had a case with them when he run for the Presidency and it takes precedence over his duties as Kenyans deputy head of state.

http://allafrica.com/download/pic/main/main/csiid/00251548:7ac50f7c11d990ae4954c902ce68475f:arc614x376:w614:us1.jpgLet us look at some issues objectively.

First, the Kenyan constitution allowed Uhuru Kenyatta and William Ruto to run for the presidency despite their indictment at the ICC. The same constitution now protects the President from any criminal court proceedings, and also states once a person is elected President any criminal proceedings against him that were ongoing shall cease (or be suspended). This suggests that the framers of Kenyan constitution envisioned us electing someone with criminal proceedings against them. The recent court decision removing President Kenyatta's name from a land case against him and his mother supports this point.

However the international court does not recognize presidential immunity. Unfortunately the court must depend on Kenya's cooperation to proceed with its case, which means it will have to ask Kenyans and their institutions for help to prosecute a Kenyan President. So, is it legal for a Kenyan to provide evidence against a Kenyan President? Can a Kenyan court order a Kenyan institution to support an international prosecution against a Kenyan President? Even more interesting, can someone go to court seeking orders stopping another Kenyan/Kenyan institution from cooperating in a criminal case against a Kenyan President, wherever, and argue it goes against the constitution? Second; Uhuru, at one of the presidential debates stated that his case at the ICC is a personal one. However does the Kenyan constitution envision a situation where an incumbent President temporarily stops being President, to handle a personal matter; especially one conducted in the full glare of international media? Does any President in the world actually have any part of his or her life that is 'personal' while in office?

So, will Uhuru Kenyatta have his presidential standard and national flag behind him at the Hague? Will the military ADC be seated behind him? Who will be in charge of his security whilst in court; Kenya's presidential escort or ICC security guards? In case of a national crisis (like the recent JKIA fire) will the court proceedings stop to allow Uhuru to deal with it? In case of a security threat in the court will he be taken into court custody or whisked away to the Kenyan Embassy? Is he still the Commander in Chief of the Kenyan Defence Forces while at the Hague? Considering their concerns when he knelt during his inauguration will they allow their boss to be held incommunicado in a foreign court?

These arguments do not apply for Deputy President William Ruto until the constitution states that were something to incapacitate President Kenyatta, Ruto immediately becomes President, fully. God forbid; what if this was to happen while Ruto is 'held up' at the Hague?

Third; some say that that impunity will have 'won' if the ICC treats Uhuru and Ruto differently just because they are now in the Presidency. But the ICC already set a precedent when it treated President Kibaki and Prime Minister Odinga differently; or how else does one explain how lieutenants of the two competing candidates were charged, but not the candidates? Is this a case of the ICC refusing to accept that the 'game' has now also changed with 'Uhuru' and 'Ruto'? Can this refusal be termed as 'impunity' from the court?

Let us now look at this from a global perspective.

In a fair world the ICC would have several other heads of state before it. Is how they are treating Kenya's President how they would treat a Syrian, American, Israeli, British, Russian, Chinese, Indian or German Head of State? Do they realize how their treatment of President Kenyatta affects future cases against any other incumbent President? Do they expect cooperation from heads of state in future when they cannot accommodate the circumstances of how a head of state operates? How do they deal with a situation where there is a conflict between a country's constitutional expectation on an indictee before them, and theirs? Which expectations are superior to the other?

So, are the ICC Kenyan cases a lost cause?

I do not know. What I do know is that there must be many places in the world, including at the ICC, where a conversation on how these cases could possibly just 'go away' without leaving egg on the face of the international Community, the ICC or the Indictees, is going on. I also know that Kenya's Presidency is an institution that will outlast the current occupants; we must therefore protect it, whatever we think of those in it, at various times.

 

 

Source: The Star

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