Anxiety is in the air that any time between Monday and January 20, 2012, the International Criminal Court (ICC) pre-trial chamber will deliver a ruling on whether or not to confirm charges related to the Ocampo Six.
A number of questions arise regarding the impact of the much-awaited ruling.
Whether or not to confirm charges is a duty statutorily within the jurisdiction of the judges of the pre-trial chamber.
It is also not the duty of this article to pronounce on the relative culpability of any of the suspects in the Kenya case at the International Criminal Court.
Some facts, however, are not in dispute. First, out of the six suspects at the ICC five are public or state officers within the meaning of the Constitution of Kenya 2010.
These are Uhuru Kenyatta (MP and Cabinet minister), Henry Kosgey (MP and suspended Cabinet minister), William Ruto (MP), Maj-Gen (rtd) Hussein Ali (Post Master General) and Mr Francis Muthaura (Head of Civil Service and Secretary to the Cabinet). The other suspect, Joshua arap Sang, is a private citizen in the employment of the private sector.
Second, it is in the public domain that Mr Kenyatta and Mr Ruto have declared their intention to run for the highest office in the land, that is, the presidency of the Republic of Kenya.
The question for interrogation by this article is what is the effect of the ruling by the ICC on the presidential ambition as well as the public service careers of the affected suspects?
As a matter of law, the judges of the pre-trial chamber have a number of options regarding each of the suspects as well as the prosecutor’s case.
Two broad options, however, are that the pre-trial chamber may confirm or fail to confirm the charges against any or all of the suspects.
Should the judges fail to confirm the charges and, perhaps, dismiss the charges all together, no real issue regarding the careers of any of the suspects arises.
They will be free citizens like any other to carry on with their lives and careers unimpaired unless otherwise lawfully impaired by any other cause. The real challenge arises in the event that the charges are confirmed.
Under the statute establishing the ICC, the said charges can only be confirmed if the judges of the pre-trial chamber, or a majority of them, are satisfied that there are substantial grounds to believe that the suspects or any of them has committed the charges that the prosecutor has alleged they committed.
Some have argued that confirmation of charges will make the suspects in public office unsuitable for such office within the law and consequently they will have to quit.
The same school of thought has opined that if the charges are confirmed, and barring any variation of the order of confirmation, the suspects with presidential ambition will have to forego such ambition as the fact of confirmation will make their contest for office of president untenable in law.
There is the second school of thought that argues that with or without confirmation of the charges the Ocampo Six, as the suspects have come to be journalistically identified, will still be eligible to hold public office including eligibility to run for the office of president.
I seek to interrogate the merits or demerits of each of these arguments. It is not disputable that whether one will contest for or hold public office in Kenya is a question to be determined by reference to Kenyan laws beginning with the supreme law itself – the Constitution.
The second school of thought opines that as a fundamental tenet of our constitutional guarantees, one is presumed innocent until proved guilty.
It is arguable, therefore, that it would fly in the face of this presumption of innocence to deny any of the suspects an opportunity in public office on grounds of mere suspicion and without proof of guilt.
It is further arguable that the office of president, for instance, has eligibility criteria that one must meet prior to being permitted to contest.
Article 137 of the Constitution spells out the criteria for eligibility (that is qualifications and disqualifications for election as president).
The qualifications are; citizenship by birth, qualification to stand for election as a member of Parliament, nomination by a political party or independent candidature, and, nomination by not fewer than 2,000 voters from each of a majority of the counties.
The disqualifications are where one owes allegiance to a foreign state or is a public officer or is acting in any state office or other public office other than the office of president, deputy president or member of Parliament.
Against this background, it is arguable that confirmation of charges at the ICC or otherwise is not part of the criteria in determining whether one should run for president.
In these two arguments lie the merits of the second school of thought and, therefore, the demerits of the first school of thought.
Proponents of the first school of thought present the equally unassailable argument that the Constitution exists and must be read as a whole.
This argument is anchored on the fact that confirmation of charges against any of the six suspects in the Kenyan case will mean that there is substantial ground to believe that he committed one or more of some of the most heinous crimes in the history of mankind.
There being substantial grounds to hold such belief, an integrity question arises. It is arguable that such a person lacks the integrity necessary to hold public office.
Without integrity to hold public office, such a person cannot vie for an office that he cannot hold.
Article 10 of the Constitution provides for national values and principles that “bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the Constitution”. One of the national values and principles is integrity.
It is, therefore, arguable that in interpreting the criteria for holding of public office, including running for the esteemed office of president, one must apply the integrity test.
The other integrity-laden provision of the Constitution is the now famous Chapter Six that makes overarching provisions regarding leadership and integrity.
One of the guiding principles of leadership and integrity is selection on the basis of “personal integrity, competence and suitability...”
It has been noted above that part of the requirement to run for the office of president is that one must be eligible to vie for office of a member of Parliament.
On the other hand, under the Elections Act 2011, one is disqualified from being elected a member of Parliament, hence president, if the person is found to have contravened Chapter Six of the Constitution.
It follows from the foregoing that if any of the Ocampo Six fail the integrity test as set out in Chapter Six of the Constitution, they would be ineligible to run for the office of member of Parliament and, by extension, the office of president.
As for the other public servants, they too are bound by the provisions on leadership and integrity.
If there is substantial ground to believe that any of the other public officers is responsible for some of the world’s most heinous offences, it would be illogical to argue that they can pass the integrity test.
It would, by parity of reasoning, be illogical to justify their continued hold on public office on the grounds or any other presumption under the Constitution.
To argue that they are not eligible to vie for presidency or to hold public office is not to argue that they are guilty of any of the offences.
The standard of proof of guilt is much higher and the prosecution remains under a duty to meet that standard and the trial should the case get there.
The sanctity of public office demands that persons substantially suspected to be unworthy of that office are kept out of it until otherwise cleared. That is my case.
The writer is an advocate of the High Court of Kenya and law lecturer [email protected]