Sunday, December 23, 2012

New report warns of the painful costs of a Jubilee victory

PHOTO | SULEIMAN MBATIAH | FILE ICC Prosecutor Fatou Bensouda and the court’s director of jurisdiction, Mr Phakiso Mochochoko, answer questions from displaced persons in Nakuru in October.

PHOTO | SULEIMAN MBATIAH | FILE ICC Prosecutor Fatou Bensouda and the court’s director of jurisdiction, Mr Phakiso Mochochoko, answer questions from displaced persons in Nakuru in October. A new report compiled by a group of NGOs warns that a Uhuru-Ruto government will be negatively affected by the ICC cases the two are facing.  NATION MEDIA GROUP

By EMEKA-MAYAKA GEKARA [email protected]

Even as delegates gather in Nairobi on Sunday to endorse the Jubilee presidential candidate, a group of NGOs has compiled a report warning against the candidature of TNA leader Uhuru Kenyatta and his URP counterpart William Ruto, saying it will render the country “leaderless” if they win in the March 4 elections.

The report, “Implications of a Kenyatta/Ruto presidency for Kenya”, seen by the Sunday Nation, explores the possible consequences for Kenyans should either of the two leaders be elected as president or deputy.

It zeroes in on how the routine of the president and his deputy would affect the country if Mr Kenyatta and Mr Ruto’s coalition wins the presidential elections next year.

Mr Kenyatta, The National Alliance presidential hopeful, and Mr Ruto of the United Republican Party, who have come together under the Jubilee Coalition to contest the presidency, will in April next year be tried for crimes against humanity at the International Criminal Court in The Hague. They will stand trial for crimes committed during the 2007/8 post-election violence.

The two are presumed innocent until proven guilty, but their circumstances continue to dominate debate on the presidential campaign.

The overriding conclusion of the report is that Kenya could be rendered “leaderless” with an “absentee presidency” while the accused attend trials at The Hague if elected.

The report by the International Commission of Jurists (Kenya), Katiba Institute and The Kenya Human Rights Commission focuses largely on the domestic consequences of an Uhuru-Ruto victory in view of the ICC trials.

The emphasis is on the effect of the presidency on national security, the military, conduct of government business such as Cabinet meetings, appointment of constitutional office holders and the prosecution of other individuals suspected to have been involved  in the violence.

The elections are set for March 4 and a runoff around April 10 if nobody wins in the first round. This is the same date that The Hague trials are set to begin.

The challenge

Therein lies the challenge. The organisations caution that the country will face “difficult choices” if there is no winner in the first round and a runoff is necessary, and if the two or one of them is elected as president or deputy president in the repeat poll.

The NGOs say that the effects that a trial before the ICC would have on their presidency is a practical matter and raises questions that must be fully appreciated by the country as it goes to elections.

The report adds that even if the courts clear them to run for office, and even though they are undoubtedly popular, a presidency with either Mr Kenyatta or Mr Ruto at the helm is “likely to hobble Kenya as it would be impossible to conduct national affairs while the president is away on trial”.

One of the first hurdles, the report warns, will be that the accused may not be available to take oath because they will be required to be defending themselves in court.

“And after a highly difficult set of elections, Kenya may remain leaderless if its president has to abandon the election process midway and go to The Hague for trial.”

And more issues could crop up early on in the presidency.

“There is a danger that if elected as president, Kenyatta or Ruto will not make even the maiden address as he will already be away on trial.”

They argue that the president will remain disconnected with Parliament, resulting in a policy and leadership gap.

To overcome this hurdle, the president may be tempted to defy the ICC and remain in the country to take the oath of office. And in that case, the report points out, it is unlikely that he will thereafter submit to trial.

However, Mr Kenyatta and Mr Ruto have consistently maintained their commitment to cooperate with the ICC even if they win the State House race.

Further, the report cautions that given the requirement that the two be in court, they will be forced to be permanently absent from Cabinet meetings.

“Since the president is at the centre of Cabinet affairs, it is unthinkable how Cabinet would operate when faced with a long absence of the president from the country.”

An Uhuru-Ruto victory will also have a considerable effect on military command and national security agencies.

The report notes that the president is at the heart of the national security architecture and if he or his deputy goes to The Hague for trial, it will have “direct and profound effects on the security situation in the country, as both of them have direct roles in this regard”.

Then there is the question of the prosecution of other post-election violence offenders. The concern here was whether Kenya can pursue national prosecutions of perpetrators if the president and deputy president are undergoing trial abroad.

The reports paints a pessimistic picture, saying that is  improbable that persons facing charges  would to offer ultimate leadership in the trail of other accused.

“ There would be no confidence that the president and deputy president can provide full political support for prosecutions ....”

The report also raises concerns about Kenya’s relations with the rest of the world should the Uhuru-Ruto ticket emerge victorious.

The accused have declared their independence and asked foreigners to keep off the Kenyan election — “Let the people decide” has been their clarion call — and the US and some European diplomats have also said they will respect Kenya’s decision. Further, the ICC has indicated that it has no interests in determining who becomes Kenya’s next president.

Crimes against humanity

However, some Western countries have taken strong individual positions regarding their dealings with persons facing crimes against humanity charges.

And on August 4 last year, US President Barack Obama signed a proclamation giving power to the Secretary of State to prevent the entry into the US of persons who participate in serious human rights and humanitarian law and related violations.

The organisations caution that while the US has not actually put in place measures to implement this proclamation in relation to Mr Kenyatta and Mr Ruto, this will almost certainly happen if the two defy the ICC, whether or not they make it to State House.

“While Kenyans have the right to elect whoever they want, and while it would be necessary to respect democratic choices, this will not take away these well-founded concerns.”

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