By Alex Ndegwa and Martin Mutua
Neither Deputy Prime Minister Uhuru Kenyatta nor Eldoret North Member of Parliament William Ruto will be in the country for a run-off in the presidential election should they make it that far.
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.
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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.
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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.
It now emerges that the judges handed Ruto and Uhuru a poisoned chalice when they appeared to give them the green light to run for president.
For some time now, leaders in the G7 Alliance have abandoned the idea of joint presidential nominations, instead preferring each contests the presidency, hoping to reunite in case of a run-off.
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Although Uhuru and Ruto have insisted the ICC cases would not stop them from contesting the presidency, another hurdle is a pending court case in which the International Centre for Policy and Conflict (ICPC) has sought the ruling of the High Court on their eligibility.
The civil society organisation wants the High Court to state whether Uhuru and Ruto meet the requirements of Chapter Six of the Constitution of leadership and integrity. The ruling is due on July 31.
Chief Justice Willy Mutunga is on record as warning the Judiciary will stand firm and ensure leaders who fail to meet the threshold of integrity as set out in the Constitution are not allowed to run for public office.
Saying he would forever fight “in the trenches of reform”, Mutunga has dismissed claims by a section of lawyers, mps, and political leaders that Chapter Six of the Constitution on leadership and integrity stands suspended until a Bill is passed to implement it.
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The CJ has also promised to ensure that the courts uphold Chapter Six of the Constitution to weed out individuals who do not meet integrity and leadership standards.
The CJ has been emphatic that the courts must be seen to uphold the spirit of the Constitution when it comes to interpreting Chapter Six, which he warned could still be used to vet those seeking leadership positions.
On the other hand it is around the same time, April 10 tentatively, that the Independent Electoral and Boundaries Commission has planned the historical presidential run-off poll in the event there is no outright winner after the March 4 vote.
The prosecution’s request for the staggered disclosure of witnesses and evidence, and given that the defence requires three months to prepare for trial are among the factors that influenced the judges’ decision on the trial dates.
The run-off dilemma aside, the ICC suspects have to contend with the financial strain likely to emerge from running presidential campaigns while preparing for trials for international crimes.
Between now and April 10, Uhuru and Ruto will have to split their time between political campaigns and preparing for their cases.
That the prosecution intends to change the character of the charges against Uhuru, Ruto, and Muthaura to boost chances of conviction underlines the defence must fight even harder.
Part 6 and Article 61 (9) of the Rome Statute states in part: “After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges.”
After amending charges in the Thomas Lubanga case, the prosecution secured its first ever conviction from a full trial.
Lubanga was sentenced to 14 years, but will only serve eight as he spent six years in custody before and during his trial.
The costs associated with an ICC trial are heavy in terms of legal fees, transport, and accommodation, among other expenses.
Apart from the financial implications, the distraction in time off the campaigns to consult lawyers preparing defence is another challenge.
One of Sang’s lawyers, Katwa Kigen, however, downplayed the suggestion that preparation for defence would interrupt the affairs of the suspects.
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Uhuru Kenyatta William Ruto ICC general election