By Alex Ndegwa and Martin Mutua
Despite Trial Chamber V of the International Criminal Court ( ICC) consenting to the request by the two accused for their trials to begin after the General Election in March, the expected date for the run-off voting is April 10, when the trial in the first Kenya case involving Ruto begins.
Uhuru’s trial begins the following day, but he, too, must travel to The Hague in advance so as not to breach the rules of the trials established during the Status Conference in June, when the accused agreed to be present at the trials as the rules of the court require.
All four signed commitments binding themselves to be present at the trials. Uhuru and Ruto, who have declared their desire to block Prime Minister Raila Odinga from State House, might now have to review their strategy within the loose G7 Alliance, to ensure their preferred candidate wins the ballot outright.
Most of the recent opinion polls have indicated that no presidential candidate will win the race in the first round of voting, making a run-off inevitable.
Even more intriguing would be the dilemma if either Uhuru or Ruto wins a run-off ballot while at The Hague, for weeks and months. Who would Kibaki hand over to, and would he take the oath of office at The Hague? Does the law allow a president-elect to remain in office during his trial for serious criminal offences?
The trials are expected to be a long-drawn affair. The ICC prosecution has stated it would take at least one year to argue each of the Kenya cases once the trials begin.
ICC’s tentative calendar for 2012 shows once the ongoing trial of Jean-Pierre Bemba resumes after the court’s August recess, it is scheduled every day of the week until end of the year.
On the other hand, refusal to co-operate with the court would put a president-elect in an awkward position because he would essentially be branded an international fugitive, like Sudan President Omar al Bashir and also risk impeachment by Parliament.
Uhuru and former Head of the Civil Service Francis Muthaura are in the second Kenya case, while Ruto and radio journalist Joshua arap Sang are in the first.
Part 6 and Article 63 (1) of the Rome Statute establishing the operations of the ICC requires that the accused must be in court at all times during their trials.
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