Consequences of an Uhuru-Ruto presidency

URP’s William Ruto (left) and Uhuru Kenyatta of TNA have been charged with crimes against humanity by the ICC. [Photo: File/Standard]

By Wahome Thuku

That the pending criminal charges against Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto could ground their ambitions for Kenya’s Presidency is in doubt.

The trial for crimes against humanity at the International Criminal Court is likely to have a devastating effect on a Government formed either by Uhuru or Ruto and even worse by both of them. That has been explored and all pros and cons over the situation analysed in details since the charges against them were confirmed early this year. What has not been fully looked into is the other side of the coin — how the Uhuru/Ruto government could affect the twin ICC trials, which start in April next year.

Is there a remote possibility that the Uhuru/Ruto presidency would scuttle the cases and allow them to enjoy total freedom and serve full term? An affirmative answer to that question would provide the biggest motivation for them to ascend to the presidency.

According to the latest political arrangements, Ruto is guaranteed the deputy president’s slot should his political coalition win the March 4, 2013 polls. Uhuru will fight it out with his fellow Deputy Prime Minister Musalia Mudavadi for the coalition’s presidential ticket. The outcome then, could be a Government with Mudavadi as president and Ruto as deputy or both Uhuru and Ruto as president and deputy respectively.

Whichever the case, the presence of the two suspects in the top leadership will come with its consequences, either to the country or even to their trials.

Rome statute

The first question is whether a Kenyan president would submit himself for an ICC trial if and when needed to. Under the Rome Statue, it is mandatory for the suspects to be present at The Hague during trial.

Failure to attend means the trial would not proceed and a warrant of arrest would be issued against the suspects. Uhuru and Ruto are free on condition they abide by all the terms and conditions set by the Pre-Trial Chamber last year and adopted by the Trial Chamber this year.

The two have pledged full cooperation with the court. The lawyers gave an undertaking during the status conference mid this year that the suspects would abide by all rulings made by the Trial Chamber regarding their attendance. The court expects them to keep the undertaking irrespective of their status.

Chief ICC Prosecutor Fatou Bensouda visited Kenya in October and drummed up the message that nothing would change.

“The trials will go on irrespective of the outcome of the political process,” she said. Bensouda repeated the same message during the ICC 10th anniversary celebrations in Germany.

But in Kenya, Attorney General Githu Muigai has said a sitting president cannot be criminally prosecuted before any court. “A sitting Head of State enjoys immunity from criminal prosecution all the time,” the AG has said repeatedly.

Lawyers say if this is the position of the Kenyan government in a matter involving the president of a different country, the AG would be even more assertive if it involves a Kenyan president.

If that will be his legal advice to the Uhuru government, the result would be a likelihood of failing to attend the trial.

An even more critical issue is whether the Kenyan Government would extend further cooperation with the ICC prosecution in a case involving its president. Since the cases started, both the Government and the Office of the Prosecutor (OTP) have been at loggerheads over the level of cooperation.

States’ co-operation

It may be argued that the ICC is an independent body not influenced by the political environment in a member state. But the ICC relies on cooperation from the governments to conduct its work, as provided under the Rome Statute.

The ICC relies on the member states to execute its warrants, provide evidence or facilitate its collection and also appearances of the witnesses during the trial. The prosecution has a whole host of people to draw information from, including police officers, the intelligence service, staff of the Waki Commission which inquired into the PEV and other Government quarters, all of whom fall under the Head of State.

That has been demonstrated by the visits to Kenya by the two chief prosecutors Luis Moreno Ocampo and his successor Ms Bensouda to press for more cooperation from the Government.

Part of the cooperation is in the protection of witnesses and their families and also in provision of access to information held by the State and necessary for the prosecution’s case.

Even before he left office, Ocampo protested before the trial chamber in May the Kenyan Government had failed to cooperate with the prosecution over witness protection.

In July, the ICC prosecution official Phakiso Mochochoko raised a red flag over alleged intimidation and threats to witnesses. In September, the prosecution again expressed desperation at the slow speed the Government was cooperating with them. They could not access information being held by the AG.

Uhuru and Ruto’s defence teams have consistently denied any involvement in the intimidation of witnesses.

The AG has on every occasion insisted the Government was cooperating fully with the ICC on the issue of witness protection. That standoff is likely to be more intensified if one of the suspects is Head of State. Failure by the AG to cooperate with the ICC would severely affect the case.

Transfer calls

With Uhuru or Ruto in power, the next clarion call is likely to be to have the cases transferred to Africa or even in Kenya.

On several occasions, President Kibaki himself has indicated he would want the case to be dealt with by the East African Court of Justice (EACJ), otherwise his wish is to have the case heard and determined in Kenya. In February, he wrote to the UN Security Council advising that the trial of the two leading aspirants was a security concern to Kenya. He was then asking, but failed to convince the council, that the cases be stopped for a year to let Kenya prepare ways of trying them locally.

The voice put across by the East African Legislative Assembly mid this year that the cases are transferred to the EACJ would likely be louder than it has been.

Prime Minister Raila Odinga is on record saying if he formed the next government he would press for the cases to be brought back to Kenya and handled by the reformed Judiciary.

It is more likely that this call would be more elaborate if Uhuru or Ruto were themselves on the driving seat.

Whoever will become president will certainly have been voted by more than half of the voters.

Already, the elections will fall right into the trial period. An Uhuru Kenyatta win would mean the country will have elected him either in absentia or at the most crucial moment of his life — when trial for crimes against humanity starts.

“The ICC really has no business with the political affairs of a member state. But announcing a man president-elect when he is seated in the criminal court would even scuttle the judges,” says a political analyst, “They would be at a loss as to whether or not to congratulate a suspect.”

Electing two ICC suspects to the top offices would perhaps be seen as a major vote of no confidence against the court, a message that could reverberate across the world.

Law and order

On one side, it may be viewed as a revolt against international law and order, but on another side it may be seen as a Kenyan message to the ICC.

The latter situation would be prompted by the fact that the two ICC cases present Uhuru and Ruto as protagonists who headed two rival gangs that caused the killings, rape and murder and evictions of masses.

According to the prosecution evidence, Ruto organised and executed the plan to kill and evict the Kikuyu from the Rift Valley. Uhuru organised Mungiki militia gang for retaliatory attacks against the Ruto gang.

Electing the two as president and deputy would present a contrasting scenario that would undermine the prosecution’s case against them.

The prosecution may have enough reasons to insist that the witnesses should not be disclosed to the suspects given their political status.

There is the likelihood that Uhuru or Ruto presidency would be enough influence to the allegiance by a number of witnesses.

According to the prosecution, some evidence and witnesses should be disclosed at the earliest opportunity while others are to remain concealed and only revealed before they are called to the stand.

There is a difference between witnesses and victims of the post-election violence. Whether some witnesses with no substantial stake in the trial would accept to stand and testify against a sitting Head of State is anyone’s guess.