By Koki Muli

Rasna Warah, in her article titled “Apocalyptic implications of having a president who is an ICC suspect” (Sunday Nation, October 28) argued that “if an ICC suspect assumes the presidency in the next election, the consequences for Kenya could be disastrous politically and economically” giving serious reasons.

This got me thinking about how practical it is for a sitting president to be shuttling between Kenya and The Hague to attend hearing, while balancing the presidency involving taking considered executive decisions on behalf of Kenya.

Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto must have privately searched their souls and reflected over this matter long and hard. Ruto’s statement that he would govern through Internet must have been made in jest; because even he knows the number of Kenyans who have access to computers/electricity is minimal, forget about those who can read and navigate governance through computers. The president is the CEO of Kenya answerable to all of us, whether we voted or not; and ought to be taken more seriously.

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While vetting or stopping presidential candidates from vying may be difficult; it will be easier to impeach the president-elect should that become necessary. Article 145(1) of the Constitution provides “a member of the National Assembly, supported by at least a third of all the members, may move a Motion for the impeachment of the President – (a) on the ground of a gross violation of a provision of this Constitution or of any other law; (b) where there are serious reasons for believing that the President has committed a crime under national or international law; or (c) for gross misconduct.

This provision does not require conviction by a court of law, exhaustion of all appeals or much evidence; all that is required are “reasons for believing that the President-elect has committed a crime under national or international law.” Also committing any crime under national law or violating the Constitution or other law is enough ground for impeachment.

 The standards of proof are actually lower than those under integrity and leadership chapter in the Constitution. The Supreme Court may need to interpret this constitutional provision urgently unless the High Court does it as it addresses itself to the question of whether the two ICC suspects are eligible to vie for president. In a democracy, it is the eligible voters who determine who should be their elected leaders. 

However, it is important that those voters have all the necessary and relevant information to enable them make informed decisions.

 The ministry of Justice and the Independent Electoral and Boundaries Commission (IEBC); both running civic and voter education Programmes are obliged to provide the information. Voters need to know that, if a president is impeached, the Deputy President (DP) automatically becomes president until the next election even though the voters didn’t vote for the DP to be their president.

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Article 46(2) guarantees the DP the presidency in case of impeachment of the President and the DP will choose his/her Deputy! This makes the position of running mate of the two ICC suspects quite attractive if impeachment were to succeed! Unless, the two run together, which means Kenyans will have to go back to elect a new president and deputy, in the event of impeachment on grounds of the ICC case or any other national law case.

Kenyans need to have somber and objective public debate on how to address the potential of either of the two ICC suspects becoming our president, with or without the other as running mate.

This is not a victim versus villain debate; it’s for the good of Kenya! If the two love Kenya as much as they say they do; they must encourage this discussion without inciting ethnic and other sectarian interests – Kenya belongs to all of us; each one of us having one share capital of equal value irrespective of ethnicity or political opinion.

The writer is an elections and constitutional law expert and lecturer, South Eastern University College

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ICC election Uhuru Kenyatta William Ruto