Deliberate by ICC? Uhuru, Ruto to attend trial at the same time


There was concern yesterday after a new trial schedule by ICC placed both President Uhuru Kenyattaand his deputy, William Ruto, at The Hague at the same time.

According to the schedule, Uhuru and Ruto will both attend their trials between November 12 and December 13.

The demands of the international court will put the country in uncharted territory, and likely constitutional crisis.

The schedule indicates that the case one involving Ruto and radio personality Joshua Sang will start at 9.30am while that of Uhuru will be heard in the afternoon.

Unlike in the old Constitution where the President carried the power of office out of the country, the current Constitution provides in Article 147(3) that when the President is absent, the deputy shall act as president.

Power vacuum

What the Constitution drafters failed to address is how to plug a temporary power vacuum occasioned by in a situation where both are away.

In such an event where both the President and Deputy are away in The Hague, the offices remain constitutionally occupied as per Article 146 of the Constitution.

The office becomes automatically vacant only in the event of two occurrences, the death of the holder or resignation. The other two ways in which the office becomes vacant are through incapacitation or impeachment, which entails a long constitutional process.

Should the office fall permanently vacant at the same time, the Speaker of the National Assembly would take over and a presidential by-election held in 90 days.

The Speaker does not take over when the two are out of the country even if they have travelled together.

It is, however, the practicality of running the offices from The Hague that is the challenge.

Constitutional petition

According to Nairobi lawyer Kibe Mungai, the absence of the president and his deputy at the same time would cause “practical difficulties” in the affairs of the country.

Mungai said 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,” he said.

The issue is already the subject of a constitutional petition filed in court on Tuesday by a lobby group, the National Conservative Forum.

The group wants Uhuru and Ruto barred from attending the ICC. Through lawyer John Khaminwa and Jennifer Shamalla, they are seeking a declaration that when the President and the Deputy President are out of the country at the same time, there shall be a vacuum in governance on the part of the Executive and this shall occasion an imbalance in power.

The case was slotted to be heard on Monday, by which time Ruto would already be on his way to The Hague.

In the real sense of the situation, there is nothing unlawful about a Head of State and his or her deputy being out of the country together, says constitutional lawyer Soyinka Lempaa.

“It’s only that our Constitution does not guide us on who should be in charge. It would even be worse if the National Assembly Speaker was to become incapacitated together with the two leaders. We could face a constitutional crisis,” he says.

Acting president

Even the Constitution of the USA does not envisage a clear situation where both the president and the vice president are out at the same time. But the US Congress is charged with the power to declare which other officer shall Act as President when both offices are

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