Uhuru's ICC shocker as Ruto gets power to act

Kenya: President Uhuru Kenyatta tactfully signed away his powers to his deputy William Ruto in a move he said was to protect the country’s sovereignty in The Hague courtroom during his attendance.

He also distanced himself from claims he could have used his position to undermine the co-operation the international court sought from the Kenyan government. With a stroke of the pen, the President baffled the Opposition that has been arguing his "personal case" would soil Kenya's name given he was to be the first sitting Head of State to appear in The Hague court as a suspect. But with his signature and by invoking the relevant constitutional clause, Uhuru would technically be appearing in court in his personal capacity.

But even more interesting, when the court is called to rise with the entry of the judges, again technically, a President will not be among those rising to their feet! However, that is not to say Ruto assumed all the President's powers as demonstrated in a separate story.

To highlight how seriously the President wanted the transfer of power understood, after announcing his intention in Parliament, he went to Harambee House where he signed the relevant papers and symbolically handed Ruto his symbols of power, signified largely by the presidential motorcade. He left the building in a simpler motorcade and without his official aide-de-camp.

The President unveiled his plans while addressing a special session of a joint sitting of the National Assembly and the Senate whose summoning had fuelled speculation that one of the big statements he could make ahead of his appearance at the ICC status conference tomorrow was that he was not going to attend. 

Indeed, when he opened his speech with an audit of Kenya's rating before the family of world nations while admonishing the West's attitude towards African leaders, and at the same time repeating his innocence and decrying the fact that his case had been allowed to drag on even when the Prosecution had conceded depletion of evidence, that seemed to be what he was about to say.

Uhuru left Harambee House with only three vehicles. Security chiefs and top Government officials were holed up in the Office of the President briefing acting President Ruto on national matters. Uhuru leaves for The Hague today.

At around 6.10pm, Ruto left Harambee House in the presidential motorcade complete with police outriders, privileges he has hitherto never enjoyed.

The President told legislators he had decided to invoke Article 147 of the Constitution to name Ruto as acting Head of State so as to separate the person of Uhuru Kenyatta as an individual and Uhuru Kenyatta the President.

Article 147(3) of the Constitution of Kenya spells out that when the President is absent or temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President.

"Let it not be said that I'm attending the status conference as the President of Kenya. Nothing warrants my being in court. I will go to The Hague on Wednesday, not as President of Kenya. I invoke Article 147 by appointing Deputy President William Ruto acting President of Kenya," he said.

The President further explained to MPs that the decision to hand power to his deputy was meant to ensure that the sovereignty and democratic will of Kenyans would not be subjected to a foreign jurisdiction.

"I have chosen not to put the sovereignty of this nation on trial. I received notice to attend a status conference at the ICC. This is not a time for us to be tense, it is time for us to be proud of the democracy we have built," he said.

He assured Kenyans that his presence in court would not in any way "injure the person of a President", adding that his decision to attend the status conference in The Hague should not raise confusion and anxiety but instead make Kenyans proud of the democracy they have built, and the law-abiding country Kenya has become.

"So, to all those who are concerned that my personal attendance of the status conference compromises the sovereignty of our people, or sets a precedent for the attendance of presidents before the court, be reassured, this is not the case."

By transferring power to his deputy, the President sought to free himself to honour his obligations to the ICC, appease his African Union counterparts who are opposed to a sitting President being paraded in the dock and give momentum to his defence team's legal fight with chief prosecutor Fatou Bensouda.

Ms Bensouda argues President Kenyatta's government had failed to co-operate with the prosecution by stonewalling requests to turn over his financial records. But the defence has sought to distinguish between Uhuru the President and Uhuru the accused, arguing he plays no role in the matter and that his case should be terminated if there is no evidence.

To further buttress the argument, the defence team has often cited Kenya's new Constitution, arguing it establishes independent institutions that are not directed by anyone, a line of argument President Kenyatta stressed in his address to Parliament yesterday.

"When the prosecutor admitted that there was insufficient evidence against me, I expected that the matter would be dropped for lack of evidence. Instead, the prosecutor requested an indefinite postponement of the case and shifted the focus to the Government of Kenya to provide the evidence," Uhuru said.

He added: "It was made clear that I was to be excluded from dealings between the prosecutor and the relevant organs of the Government of Kenya in this new focus. Accordingly, my legal representatives were excluded from this exercise. In compliance with this order, I have not interfered with the protocol set by the prosecutor in her dealings with the Government. This means that in this new line being followed, I was kept in suspense, while the prosecutor engaged with the relevant organs of the Government."

President Kenyatta reiterated that he and his deputy were being hounded by imperialist powers who held the view that African leaders were "embodiments of corruption and impunity".

"My accusers, both domestic and foreign, have painted a nefarious image of most African leaders as embodiments of corruption and impunity. This image depends on an internalised assumption that social and political upheavals in Africa are inherently perverse, and the result of leadership failure, that always warrants a charge of crimes against humanity," he said.

"My conscience is clear, has been clear and will always be clear that I am innocent of all accusations levelled against me. The prosecutor has admitted that the available evidence is unable to prove criminal responsibility beyond reasonable doubt and I expected the matter to be dropped for lack of evidence. Instead, the prosecutor asked for an extension and blamed the Government of not co-operating," he added.