Constitution and Rome Statute on qualification for election as president

By Ben Sihanya

As Kenyans await the ICC ruling on the Ocampo Six, the question that has dominated political, constitutional and juridical discourse is whether Uhuru Kenyatta and William Ruto can contest for presidency if charges against them are confirmed.

On this question, I adopt a three-pronged typology regarding the rules of interpretation of constitutions, statutes, and related juridical instruments. I use the British formula as modified by American methodology, for two reasons: First, Kenyan laws and institutions are largely adaptations of British and Commonwealth traditions.

Second, the American interpretation methodology applies because under the new Constitution, Kenya has adapted an American-style presidency and juridical process. The typology entails, first, the plain meaning, literal, textual meaning rule; second the mischief or history rule; and third, the golden, ambiguity, absurdity, or structure rule.

The textual rule requires that the words are to be given the ordinary or lay meaning, unless the text explicitly defines some of its terms otherwise. Using this formula, it is arguable that on the face of it, Article 137 (on qualification for election as President), does not disqualify Uhuru or Ruto from vying for the presidency if charges are confirmed under the Rome Statute.

The general rule of interpretation under this formula is that whatever is not specifically barred is permitted (but not necessarily guaranteed) by necessary implication. However, it is instructive that the Constitution usually does not specify, and is not expected to deal with, all scenarios that may arise, like in presidential nominations or elections. It provides general principles and the statute, rules and regulations, or tradition, may supply details (provided they are not inconsistent with the Constitution).

The rule’s primary aim is to determine the "mischief and defect" that the relevant law has sought to remedy, and what process, decision, ruling or outcome would effectively implement that remedy. This methodology requires that the Constitution be read in totality, and not by selectively focusing on Article 137.

Kenyans must look at relevant constitutional provisions, including Article 10 on national values and principles of governance; Chapter Six on leadership and integrity of State officers, and Article 129 on the popular derivation, service orientation and juridical accreditation of Executive authority, among others.

The main mischief that the new Constitution sought to address is the imperial presidency, personification of Executive power, related presidential excesses, and the historically unregulated or underregulated presidential processes such as qualifications for nomination and election, performance and retirement.

These underregulated processes ushered in presidential manipulation, lawlessness, impunity and intrigue (or presidential fitina and nyoko nyoko), especially with respect to nominations and elections under Jomo Kenyatta, Daniel Arap Moi and Mwai Kibaki governments.

The basis of regulation is that the presidency is the most significant office in the State bureaucracy and in Kenya. Thus persons supporting the withdrawal of Uhuru and Ruto from the presidential race argue that to allow persons undergoing a criminal process to vie for the top seat, would expose, demean and even criminalise the presidency.

They say this is against the rules, values and principles of the Constitution. They argue that the charges relate to crimes against humanity, including murder, forcible transfer of population, and persecution, which are the most serious under the Constitution and transnational legal process.

Third, the golden rule, is against absurdity or ambiguity. It allows for interpretation by ignoring ordinary meaning, in order to avoid an absurd, clumsy, anachronistic, ambivalent or counterintuitive outcome.

Some observers argue that should the ICC charges be confirmed, and Uhuru and Ruto successfully contest the presidency, then, as State officers, they may be required by the Constitution to step down during the hearing process, or face impeachment.

This is indeed an absurdity that the officers, courts or anyone interpreting, protecting and defending the Constitution would be keen to avoid. The law and legal institutions are required to be purposive and not act in vain.

These rules were developed to focus on statutory interpretation under an "unwritten" Constitution and parliamentary sovereignty in the UK. But they are applied to constitutional interpretation too, especially in the context of American and Kenyan contexts of constitutional supremacy and popular and parliamentary sovereignty in Constitution and law making, respectively.

And constitutions are interpreted to require higher standards of probity and caution thus acting ex abundanti cautela. Indeed, Article 259, in providing guidance to constitutional interpretation, requires that it is interpreted in a manner that promotes its purposes, values and principles, advances the rule of law, and human rights and freedoms, permits the development of the law, and contributes to good governance.

Hence constitutional objectives and aspirations are higher than statutory objectives. In this context, statutory and other juridical instruments on qualification are relevant in ascribing particular standards to constitutional objectives. For example, the integrity and anti-corruption legislation and the Public Officer Ethics Act, 2003 require a public officer charged with an offence in a court of law to vacate office until cleared.

During this debate, less attention has been paid to the Political Parties Act, 2011, the Elections Act, 2011 the Independent Electoral and Boundaries Commission (IEBC) Act, 2011, political party constitutions, and nomination, as well as related electoral rules.

These laws are important because, first, they give meaning to the more generic constitutional provisions on qualifications. Second, they shift the decision-making power on this matter to various bureaucrats and courts.

For example, under section 24 of the Elections Act, qualification entails satisfying moral and ethical standards prescribed by the Constitution (Chapter Six and articles 10 and 137, etc) and the Act. And disqualification is hinged on factors that "in any way" contravene Chapter Six of the Constitution. IEBC has a role here.

The writer is a Presidential and Copyright scholar at the UoN Law School and Sihanya Mentoring