Tuesday, June 18, 2024

CIC boost for Uhuru, Ruto contradicts Justice Minister Mutula

Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto got a boost in their presidential ambitions hours before the ruling by the International Criminal Court on whether they and four other suspects would be tried in The Hague.

The Commission for the Implementation of the Constitution (CIC) said the Ocampo Six are free to vie for any elective post even if the charges are confirmed.

The commission’s stand is a morale booster to Uhuru and Ruto and contradicts Justice Minister Mutula Kilonzo’s position two days ago that Chapter Six of the Constitution bars any suspect facing criminal charges from running for public office.

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Uhuru and Ruto and contradicts Justice Minister Mutula Kilonzo’s position two days ago that Chapter Six of the Constitution bars any suspect facing criminal charges from running for public office.

Uhuru Kenyatta, Civil Service boss Francis Muthaura, and Postmaster General Hussein Ali are suspected to be criminally responsible for committing crimes against humanity of murder, forcible transfer of populations, rape, persecution and other inhumane acts during post-election violence.

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Ruto, Tinderet MP Henry Kosgey, and journalist Joshua arap Sang are suspected to be criminally responsible for murder, forcible transfer of populations and persecution.

Uhuru and Ruto are nursing presidential ambitions, with the former saying he would still campaign for the top seat regardless of the ICC decision.

Ruto has, however, been more cautious with a wait-and-see approach, but admonished Kilonzo for making ‘hasty comments’ on the issue.

Kilonzo’s sentiments on the aspirants to rest their bid should their cases be committed to trial have not gone down well with the politicians and their allies.

CIC chairman Charles Nyachae on Saturday said there exists no legal provision that bars any aspirant whether charged in Kenya or under international law to run for elective office.

Nyachae also disagreed with Kilonzo call, saying Uhuru, Muthaura and Ali should vacate office should the ICC confirm their charges.



"The only legal provisions that call for suspension of public officers charged with criminal offences are in the Anti-Corruption and Economic Crimes Act, which require a public officer to be suspended once they are charged with economic crimes," he said in a statement.

Kilonzo also said if the ICC confirms charges against Uhuru and Ruto they cannot be allowed to run for president, as the Constitution bars them.

"If Uhuru’s charges are confirmed, God forbid, he will have to step aside from the Cabinet as a precedent has been set, with regard to public officers in accordance with the Public Officers Ethics Act," he added.

The minister said according to Chapter Six of the Constitution on Leadership and Integrity, it would be impossible for the two to run for the top seat, as they will not meet the requirements

"It is in our view therefore, in view of the provisions of Article 99 and in the absence of legislation under Article 80, there exists no legal basis," Nyachae said.

CIC said it is of grave concern that in the absence of an Ethics and Anti-Corruption Commission as stipulated under the EACC Act 2011, Kenyans are robbed of a golden opportunity to establish a framework for the vetting of persons seeking appointive or elective public positions.

"This risk is compounded by the absence of any vetting law that engages public participation in accordance with Article 10 of the 2010 Constitution," added Nyachae.

He said that CIC has several times asked for the submission of a Bill on Leadership and Integrity, and Vetting of Public Officers in vain, saying it is only such laws that will help in deciding who, especially in the case of State office positions, qualifies for election or appointment.

Nyachae said in the absence of such legislation, it is therefore still not known what penalties may be imposed on any serving public officer for the contravention of the principles of leadership and integrity.

International Commission of Jurists’ Executive Director, Kenyan Chapter, George Kegoro says while it is true that Chapter Six of the Constitution talks about integrity of public office holders, it is yet to be subjected to interpretation in any context.



Kegoro, however, adds that in light of what has happened to Deputy CJ Nancy Baraza, an argument can be made in court on suspects facing charges at the International Criminal Court, should charges against the six be confirmed.

The Judicial Service Commission has recommended that Baraza be suspended and a tribunal set up to investigate her conduct following an incident at the Village Market, Nairobi. She allegedly threatened a security guard.

"Should the Deputy Chief Justice be forced to leave office, then it can be argued that suspects on trial at ICC, should charges be confirmed, constitutes a significant integrity issue," says Kegoro.

This, says Kegoro, would make it difficult for those with presidential ambition to run for office.

Kegoro, however, says determination of whether Uhuru and Ruto can run for the top seat should they be committed to trial squarely rests with the Independent Electoral and Boundaries Commission (IEBC) and the courts.

"The IEBC would have to tell us what grounds constitute disqualification for a presidential aspirant," he says.

Kegoro says among reasons that can be used to impeach a president is if an individual is suspected of involvement in international crimes.

This, he says, could happen in a scenario where, say, the charges are confirmed and suspects put on trial, but still vie for top office and win the election. But this, too, would have its disadvantages.

"The individual would be opening themselves up to impeachment proceedings," he says.

International Law expert Godfrey Musila says while there is nothing at the moment to bar the suspects from seeking political office, should the cases be committed to trial, the final decision would lie with the courts.

"Nothing prevents them from running at this stage if charges are confirmed because there is no formal interpretation of the Integrity Chapter," he says.

He says while the IEBC may have a say on the matter, this, too, may be challenged, which leaves the burden of determining whether aspirants should vie for office to the High Court and Supreme Court.



"The ICC, however, is strict on these issues and if charges are confirmed then the suspects must attend court hearings, which may sometimes require one to be in court five or six days a week," he says.

He, too, says while there may be no impediment locally to the aspirants’ ambitions should the charges be confirmed, being in the race may prove a Herculean task.

"If charges are confirmed, there is no way one would expect a break from the courts to go and run campaigns. In that case one would largely have to rely on supporters to do so," Musila adds.

Source- boost for Uhuru, Ruto


Court hearings


Baraza’s conduct


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