Kenyan lawyers and MPs reacted sharply to indications that the two International Criminal Court suspects holding public office will not immediately be required to step aside.
A day after ICC pre-trial chamber confirmed the charges against Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, Eldoret North MP William Ruto and Kass FM presenter Joshua arap Sang, Attorney-General Githu Muigai said that appeal against the indictments will have to be exhausted before the two are required to vacate office.
The AG also appointed ten lawyers to advise the government on the ruling over the 2007/8 post-election violence. (READ: Uhuru, Muthaura to stay in office, says AG)
Prof Muigai said he would discuss with Chief Justice Willy Mutunga the possibility of setting up a special division of the High Court to deal with the crimes committed during that period.
“We in government are confident that under the stewardship of Chief Justice Willy Mutunga, the Judiciary is robust and capable of undertaking this challenge,” he said.
This came as pressure mounted on President Kibaki to suspend Mr Kenyatta and Mr Muthaura from office until they are cleared of charges of crimes against humanity.
Prof Muigai said it was not yet time for the two to leave office since they had have not exhausted appeal options against the ruling.
“Our understanding is that the confirmations have been made against the four and the four are going to appeal. We cannot make a precipitate decision.
“We cannot determine any issue until the four citizens have exhausted their rights of appeal,” said Prof Muigai at a press conference in his office.
Pressed to explain the suitability of the pair heading critical government departments in the face of the charges, the AG said:
“The persons appearing in the ICC are appearing in their individual and private capacity. They have very competent legal counsel and the government cannot speak on what they can do or cannot do.”
However, ODM MPs demanded their resignation, citing the agreement for the implementation of the Waki report signed by President Kibaki and Prime Minister Raila Odinga. (READ: ODM legislators now want Uhuru, Muthaura sacked)
“The Parties (Kibaki and Raila) shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon.
“The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position,” says the agreement.
Mr Ababu Namwamba, who is ODM parliamentary group’s secretary-general, said: “There is no reason for another committee.
‘‘The matter should have been handled by the sub-committee on ICC chaired by the two principals unless they tell us it has ceased to exist.”
Law Society of Kenya chairman Ken Akide said the calls for resignation were not founded in the letter of the law.
“On a strict interpretation of the letter of the law, they can’t leave office as they are not accused under the Anti-Corruption and Economic Crimes Act, which would require them to vacate office,” said Mr Akide.
But he added: “In as far as the spirit of the Constitution is concerned, one can argue that under Chapter Six of the Constitution on Leadership and Integrity, the people facing the charges would not meet the requirements for a State Officer to hold office.”
Imenti Central MP Gitobu Imanyara dismissed the move by the AG as waste of time.
“I wish to remind Kenyans that The Hague was not imposed on us. It was suggested by Justice Waki and we domesticated it when we unanimously adopted the Waki Report in Parliament,” said Mr Imanyara.
The team comprises Sir Geoffrey Nice, Mr Rodney Dixon, Mr Fred Ojiambo, Mr Joe Okwach, Mr Waweru Gatonye, Ms Betty Murungi, Ms Lucy Kambuni, and Ms Grace Wakio, Dr Henry Mutai and Dr Godfrey Musila.
The secretariat will be led by Mr Ahmed Mohamed and Ms Caroline Wamaitha from the State Law Office.
Sir Geoffrey and Mr Dixon led the government’s failed admissibility challenge against The Hague cases last year.