Why ICC suspects can still run for presidency

By Kennedy Ogutu

The two sets of cases facing four Kenyans at the Hague-based International Criminal Court have come at a time when the country is preparing to go to the polls expected in early next year..

Two of the suspects — William Ruto and Uhuru Kenyatta — have expressed their intention to contest the presidency in the coming elections.

This has elicited fierce debate concerning their eligibility to run in the election given the charges they are facing and the provisions of Chapter Six of the new Constitution.

It has been argued that the fact that they have been accused of crimes against humanity means they have failed the integrity test set by the Constitution. This debate, although healthy, has been clouded by political undertones. Views are as different as the political interests of the persons holding them.

However, a sober view of the law will reveal there is nothing in the Constitution barring the suspects from seeking political office.

We must not only look at Chapter Six, but the entire Constitution as a whole.

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. Persons who are 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.

Compensation

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, and they are presumed innocent until proven guilty. Kenyans must remember there were six suspects in the first instance.

Two of them returned home after the Pre-trial Chamber found they had no charges to answer to. What if we had hung Henry Kosgey and Major General Ali, only to be told later 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?

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