New fears over Ruto, Uhuru trials at The Hague

By Alphonce Shiundu and Felix Olick

Nairobi, Kenya: Analysts warned Wednesday of the growing likelihood that both the President and his deputy could be required to attend The Hague trials at the International Criminal Court simultaneously.

Deputy President William Ruto’s trial for crimes against humanity begins in a fortnight on September 10. His boss, President Uhuru Kenyatta, begins his appointment with his ICC trial chamber judges on November 12.

In an application contesting the decision by ICC judges to direct him to be present throughout his trial, Ruto alluded to the possibility that he and President Kenyatta could be at The Hague at the same time.

“In the coming months, trial proceedings will be on-going in the Bemba case, the Kenyatta case and, of course, his (Ruto) case,” said the filing by Ruto’s lawyer Karim Khan requesting two-week breaks during trial.

“The physical constraints of courtroom space mean that some flexibility in case scheduling will be required in any event. The court does not have the physical capacity in terms of court space to have consecutive sittings in all its cases between now and the end of the trial in this case,” read the application.

Constitutional lawyer Kibe Mungai said a scenario where the President and his deputy are out of the country at the same time would cause “practical difficulties” in the affairs of the country, and that the Constitution does not allow the two to abandon their stations at the same time.

“In legal terms, the Constitution does not envisage a situation where the President and the deputy are both outside the country,” said Mr Mungai. He added that Kenya was a willing member of the ICC and therefore it was the duty of the ICC to ensure that the trial does not inconvenience one of its members.

Not adversely affected

“As a willful member of the ICC, it is the responsibility of the judges to ensure that the affairs of the republic of Kenya are not adversely affected by the trial of an individual,” said Mungai. He said Kenyatta and Ruto must put a request for the court to alter the trial dates. If that is not accommodated, he said, it would be right for them to take a view that is contrary to the ICC.

“If there’s a good reason not to attend court, either of the two can fail to attend. It will be enough for them to say they cannot attend because the Constitution does not allow both of them to be out of the country at the same time. If you are receiving commands from two centres, you have a right to choose what to obey,” said Mungai.

There are two separate trial chambers for the two cases, meaning that the court contemplated a situation where the duo might appear simultaneously, but separately, for their respective trials.

ICC spokesman Fadi El Abdallah said that the trial sessions differ depending on circumstances of the case. “There is no general answer (as to how long a trial session can take), as it depends on multiple factors, circumstances of the case, number of witnesses and logistics for their presence before the judges,” Fadi told The Standard Wednesday.

Former high-ranking civil servants familiar with the workings at State House, and lawyers conversant with international law and jurisprudence, are in agreement that it will be impossible for Uhuru and Ruto to effectively run the country while shuttling between the The Hague court and their hotel rooms.

Former minister Franklin Bett — who served at State House, first as Deputy Comptroller and then as Comptroller, and also served as a Cabinet minister—told The Standard that it is “impossible” for the President to run the country from a foreign land. Bett said the President or his deputy must be in the country to guide State organs, especially key ones such as security and Cabinet decisions.

“There are some decisions which need to be made ‘live-live’ (sic). The orders of a President are better given and better implemented with face-to-face instructions. It will be impossible for the Cabinet to meet when the chairman is directing them on Skype from some room in a courthouse. Physical presence is key in the management of public affairs,” Bett said.

Positions of favour

He argued it would be easy for a power vacuum to foment in an environment where the effective leader was out of the country, and the hangers-on jostled to put themselves in positions of favour with the absentee leaders.

He posed: “Other decisions are dynamic. An instruction can be issued to a State officer, and he then needs supplementary orders while implementing the original instruction. What will happen if someone needs follow-up instructions on key issues, and the President plus his deputy are in the court room at The Hague and cannot be reached?”

East Africa Law Society President James Aggrey Mwamu said constitutional questions on the absence of the top two leaders would arise when they are hauled to The Hague. “The biggest problem that they must address is, when they are away on trial, who will act?” said Mwamu.

Though the Constitution makes the National Assembly Speaker the next in command, if the President and his deputy are unavailable to run the country, Mwamu said the grounds for the Speaker to assume office are laid out in the Constitution although the law did not contemplate a situation where the top two were attending trial in a foreign court.

Mwamu poured cold water on the request for the court to alter the hearing dates saying “it is a self-inflicted injury” by the two suspects who won in the last General Election.

“Altering the dates cannot be a priority for the courts. The judges will tell them that when they vied for the positions, they knew they had an obligation to attend court. They cannot now claim that they need time,” Mwamu told The Standard.

Mwamu said Mr Kenyatta had called the trial a “personal challenge” in the campaigns, but right now, his attending trial is affecting the whole country. While it is safe to assume that bureaucrats will run the Government, Musila said there is a reason why the Constitution is explicit that there must be a President and his deputy in the country.