When a presidential candidate is charged with grave crimes
What are the implications, for Kenya and the International Criminal Court, of electing a president who is about to go on trial for grave crimes in The Hague?
Published on 25 February 2013 in
ISS Today
By
On Friday 15 February 2013, the High Court of Kenya finally made a ruling on the suitability of the Jubilee Alliance presidential candidate, Uhuru Kenyatta, to contest the March 4 elections. In its verdict, the panel of five judges pointed out that the Court lacked the jurisdiction to deal with questions of qualification or disqualification of persons nominated to run for president. It ruled, instead, that only the Supreme Court had exclusive jurisdiction over the matter. This ruling paves the way for Kenyatta, a current Deputy Prime Minister, and his running mate, William Ruto, a former cabinet minister, to run for president and deputy president respectively. Praised by some as a correct legal decision, and an appropriate one given Kenya’s current political context and sensitivities, the ruling has also animated diverse opinion with some arguing that the High Court should not have heard and dismissed the case if it was outside its jurisdiction. Others have observed that the decision watered down the leadership and integrity standards as required in chapter six of Kenya’s new Constitution. It is not yet clear whether or not the matter will be elevated to the Supreme Court.
This matter went before the High Court because Kenyatta and Ruto have cases pending before the International Criminal Court (ICC) for their role in the violence that followed the 2007–08 elections that left over 1 100 people dead and over 150 000 internally displaced. The ICC’s intervention in Kenya was driven by the ICC Prosecutor after Kenya’s failure to take action against those most responsible for the violence. It is important to note that the ICC is a court of last resort and only intervenes when a state is unwilling or unable to respond to cases where crimes against humanity, genocide and war crimes may been committed. Kenyatta and Ruto are scheduled to appear in The Hague on 11 April – just over a month after Kenya’s elections – and both have so far indicated their willingness to cooperate with the ICC. According to the High Court’s ruling, although Kenyatta and Ruto have cases before the ICC, they are merely suspects at this stage and have a right to a fair trial. In that sense, the issue of integrity or lack thereof to run for public office cannot bear effect since they are presumed innocent until proven guilty.
Looking at Kenyatta’s possible election as president, the question is: what would it mean for the cases before the ICC and for Kenya as a country? Could Kenyatta and his deputy lead the country effectively while participating in the ICC’s processes at The Hague? What would be the reaction of the international community and the related diplomatic repercussions to Kenyatta becoming president? What if the election is closely contested and neither candidate garners the requisite total votes, with the result that the possible run-off date coincides with the accused’s first appearance in The Hague?
The international community has increasingly shown interest in the electoral outcome, with Western embassies in Nairobi in particular warning of the possible repercussions of electing a president wanted for gross human rights violations. Whether these countries will impose economic sanctions on Kenya or not will most likely depend on how Kenyatta responds (assuming he is elected) and whether he cooperates with the ICC. If Kenyatta wins, Kenya will become the second country after Sudan to have a sitting president facing trial at the ICC. The country’s leadership may find itself in a difficult position when it comes to transacting government business internationally. At the domestic level, Kenyatta and Ruto will have to travel to The Hague periodically to attend ICC proceedings, which could create a power vacuum. The two have, however, suggested that they won’t have problems in governing in ‘a modern technological world of emails, Skype and Twitter’. While this resonates with Kenyatta and Ruto’s campaign platform of a young, technologically savvy leadership, in practice it may not be easy to achieve.
With regard to a possible run-off coinciding with Kenyatta and Ruto’s appearance in The Hague on April 11, it is not clear what this would mean for Kenyatta’s candidature and whether his absence in the political contest could result in political violence. Overall, the chances of political violence seem to be decreasing following the peaceful referendum in 2010 that led to the promulgation of the new Constitution. The various reforms adopted include revamping the judiciary, establishing the International Crimes Division of the High Court (ICD), reforming the police service, and establishing the Independent Electoral and Boundary Commission (IEBC) and the Witness Protection Agency (WPA). The ICC’s intervention has also to a certain degree added impetus to processes of dealing with impunity in Kenya. Key political formations have publicly suggested that they have learnt lessons from the deadly outcome of the 2007–08 elections. Now that Kenya has established the ICD, which has the mandate to try international crimes, as well as the Transnational Threats Division within the Office of the Director of Public Prosecutions, this should send warning signs to those thinking about fomenting violence during the upcoming elections.
A Kenyatta presidency could also rekindle the debate about whether heads of state should qualify for immunity, especially within the African Union (AU). It may be yet another chance for Kenya to encourage an en masse withdrawal from the ICC, although this would not affect the current cases before the Court. At the same time, Kenya could revive the drive to secure a UN Security Council deferral of the ICC cases against Kenyatta and Ruto, which the AU has pursued with regard to the ICC’s case against Sudanese President Omar al-Bashir. It is also likely that these developments will see a renewed push for regional courts to be empowered to deal with international crimes, and specifically the finalisation of the amended draft Protocol that expands the jurisdiction of the African Court of Justice and Human Rights.
Overall, should Kenyatta win, this will be the first time that an individual on trial at the ICC is elected into a country’s highest office. As Kenyans go to vote, it is worth considering the questions raised here and what they mean for international justice and for the victims of grave crimes, especially those affected by the 2007–08 post-election violence in Kenya. The ICC’s intervention in Kenya has contributed to various reforms and processes in that country. It remains to be seen whether the positive momentum can be sustained after the upcoming elections..
Jemima Njeri Kariri, Senior Researcher, Transnational Threats and International Crime Division, ISS Pretoria
