Much attention in the debate on whether the two, who face crimes against humanity charges at the International Criminal Court (ICC), can run in the next General Election has focused on events in the international arena.
But the pair’s biggest challenge will be to convince Kenya’s reforming judiciary that they – and many other politicians with integrity questions hanging over their heads – can contest seats in the light of the high bar set by the Constitution.
And it is a fight that will greatly test the mettle of the revamped judiciary and in particular that of Dr Mutunga who has already warned politicians of questionable integrity against offering themselves for leadership positions.
Last week the four suspects, Mr Kenyatta, Mr Ruto, former head of public service Francis Muthaura and radio journalist Joshua arap Sang, lost their appeal challenging the jurisdiction of the ICC to hear their cases.
The decision paves the way for the start of their trials because they have now exhausted all avenues of stopping their cases from proceeding.
The last remaining option is for the government to obtain a deferral at the United Nations Security Council or for the government to set up a local tribunal that would satisfy the ICC that it is capable of serving justice, forcing it to suspend trial at The Hague.
The suspects are set to attend a status conference slated for June 11 and 12 in which, among other things, the date for the start of their trials will be discussed and rules of engagement set.
Despite the millstones around their necks, Mr Kenyatta and Mr Ruto have continued laying elaborate campaign plans in their bid to succeed President Kibaki.
The ICC has stated that it has no jurisdiction to determine whether the two suspects can vie for the presidency, therefore leaving the matter to local courts.
Given a recent surge in public-interest litigation driven by newfound belief in the judiciary, it is inevitable interested groups will seek to have the two barred from running.
One such case is already under way. Mr Patrick Njuguna, Mr Agostinho Neto, Mr Charles Omanga, the Kenya Youth Parliament, and Kenya Youth League went to court earlier this year seeking to bar the two from running for president.
It is envisaged that many more similar cases will be filed by other interested groups and that the matter might end up in the highest court in the land, the Supreme Court, where Dr Mutunga sits as its president.
“This is an obviously interesting issue for many interested groups,” said international law expert Dr Kithure Kindiki. “It will definitely be fought very passionately and very hard every inch of the way, up to the highest court.”
All eyes now will focus on Dr Mutunga who will be mandated to set up the benches that will hear the case at different stages as it winds up the legal system, perhaps up to the very top where he will sit with six other colleagues to make the historic ruling.
In March, Dr Mutunga issued a warning that must have rung alarm bells in the political arena by declaring that he will not hesitate to use Chapter Six of the Constitution on Leadership and Integrity to prevent politicians of questionable integrity from seeking elective office in the General Election.
“Being Kenyan is a full-time commitment. This country needs citizens who are Kenyans all the time; not those who are vernacular Kenyans most of the time. Just in case you forgot, Chapter Six is partly intended to eliminate this breed,” the CJ said.
The Supreme Court judges are Dr Mutunga, his deputy Lady Justice Nancy Baraza who is currently suspended, Justice Philip Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Ibrahim, Justice Smokin Wanjala and Lady Justice Njoki Ndung’u.
Ms Baraza’s suspension, however, places the court in a tricky position should a matter be brought before it urgently due to the even number of judges. They ought to be an odd number to prevent the possibility of a tie when delivering a ruling.
In the US, the Supreme Court has played a crucial role in shaping national values through its judgment on weighty national issues such as the legality of abortion and ending of racial segregation in public schools.
There, the Supreme Court judges are closely scrutinised for their professional and personal opinions on key issues of the day and are consequently categorised conservatives or liberals.
“It might be too premature to start categorising our judges in this fashion since we have little information about their stand on several issues,” said Dr Kindiki.
Chapter Six of the Constitution requires, among other standards, that State officers must not have behaved in a manner, “demeaning the office the officer holds” and must bring “honour to the nation and dignity to the office” they hold.
Clause 35 of the proposed Leadership and Integrity Bill states: “A person seeking to be appointed or elected as a State officer may not be eligible for appointment or to stand for election to such office if that person has, as a State officer, contravened the Leadership and Integrity Code under this Act or, while serving as a public officer, has contravened a Code of Ethics and Integrity applicable to that officer”.
Although still undergoing drafting the Bill, as it is, cannot bar anyone who is seeking the presidency from running, but only those who have been convicted.
The Leadership and Integrity Bill also empowers the Ethics and Anti-Corruption Commission to bar those seeking to be elected or appointed to office if they have contravened the law.
“These bodies (including the Independent Electoral and Boundaries Commission) will be required to make their decisions regarding the matter even before it goes to court and it is important to see how they will decide,” said lawyer George Kegoro.
Clause 43(1) of the Bill reads: “The Ethics and Anti-Corruption Commission and the responsible commission may, on application by any person, issue a certificate to that person or any other interested person or institution, confirming that a particular State officer is compliant or not compliant with some or all of the provisions of Chapter Six of the Constitution or this Act.”
While saying that there is little in law that bars the two from running because of a clause in the Constitution which requires that a suspect should have exhausted all options of appeal to be barred from seeking office, Dr Kindiki said that the suspects run the risk of being impeached immediately after being sworn into office.
“The Constitution demands that the Senate start impeachment proceedings against the President and his deputy if there are reasonable grounds to believe that they have committed a crime under national and international law. And if the Senate refuses to do so, then any one can petition the courts to do so,” he explained.
However, Mr Kegoro said that such a move might take a while until a ruling is made by the ICC and all appeals exhausted.
“I don’t think the decision will be made in such a short time, going by past examples of how long it has taken the court to deliver a judgment,” he said.
Source: Daily Nation
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