Two status conferences regarding the trial of four Kenyans who have been committed for trial at the International Criminal Court (ICC) took place at The Hague.
Two issues remain unresolved in the aftermath: the start date of the trials and the now topical issue of whether the accused persons can vie for political office.
Concerning the first issue, the Trial Chamber V of the ICC ruled that a decision on the trial date will be given by the start of the court’s summer recess, expected to start on July 13.
However, going by the proceedings during the status conference, it is almost certain that the trials cannot start before the next elections, expected on March 4, 2013.
Two of the accused have declared interest in running for the presidency. They, together with one more accused, appealed for trial to start after the elections to enable them to campaign.
The court may not consider such line of argument. Only one accused – Mr Francis Muthaura – asked for trial to start almost immediately, within two months.
As expected, Ms Sureta Channa, representing victims, asked for a speedy trial, without giving any proposed dates.
The office of the prosecutor pushed for trials to start next year, saying they needed up to the end of this year to comply with full disclosure and witness protection of victims.
What, then, in the context of varying proposals, is likely to be the start date for the trials?
It is highly likely that in the circumstances of the request by the prosecution that they need up to December to disclose evidence and protect witnesses, the trials will start after the elections.
Once disclosures are done, the accused and their defence teams are entitled to adequate time to prepare their submissions.
It is likely that a minimum of four months will be granted after the prosecutor is done with the disclosures.
Mr Muthaura’s request for a September 2012 trial is, therefore, near impossible.
On the second issue, Kenyans remain divided whether or not persons with pending criminal charges can vie for political office under the new Constitution.
However, debate on this emotive issue has been influenced more by political cleavages rather than objective analysis and interpretation of the law.
Political partisanship threatens to obscure objectivity on a matter of great national importance as our country goes through a make or break transition period.
The ICC has correctly stated that the issue of whether the accused can run for office is a matter for Kenyan national law to determine.
Thus, the answer to the question whether suspects can vie will be answered by the Constitution of Kenya.
Four provisions in the Constitution are likely to guide the determination of this matter by the Independent Electoral and Boundaries Commission (IEBC): general provisions of Chapter 6 of the Constitution, as well as the specific provisions of 99(2) and (3), 145 and 150 of the Constitution.
Expose to ridicule
Chapter 6 contains general provisions on the question of leadership and integrity. It states in spirit that leadership is a public trust and is a privilege not a right.
It calls on State and public officers not to engage in anything that would expose the office they occupy to ridicule, and to subsume their personal interest to the national interest.
This important chapter must be applied stringently to weed our country of tainted state and public officers.
Proponents of the view that the criminal suspects should not be cleared to vie are basing their arguments on these general provisions.
Further, they argue that the proposed Leadership and Integrity Bill which is expected by August to give effect to Chapter 6 should bar suspects from vying because doing so undermines the spirit of the said chapter.
Although chapter 6 has general provisions relevant to the question of the integrity of leaders, there are, however, very specific provisions in the same Constitution that address, in a direct manner, the question whether criminally charged suspects can vie.
These are articles 99(2) and (3) of the Constitution. Article 99(2) provides for the grounds upon which one may be disqualified from vying for the position of Member of Parliament (members of the National Assembly or the Senate).
By virtue of article 137(1)(b) of the Constitution, these disqualifications also apply to the candidates for the post of president.
It says that one is only disqualified from vying for the office of Member of Parliament [or President] if such a person has been convicted (after completion of trial) and sentenced to a jail term of at least six months.
Then 99(3) adds that this disqualification can only be invoked if a person so convicted and jailed for at least six months has exhausted all avenues of appeal.
The implication of article 99 is that a person can vie for parliamentary office or the presidency even if they are convicted of a crime and are in prison so long as they are not serving a jail term of six months or more!
It also means such a person can vie for office even if he or she has been convicted and sentenced to a jail term of any length so long as an appeal is pending.
Interpreting legal texts
One of the general rules in interpreting legal texts requires that one cannot apply general provisions of the Constitution to a matter in a way that is inconsistent with specific provisions of the Constitution on the same matter.
It follows, therefore, that in spite of chapter 6 raising the integrity bar for our leaders henceforth, its generality cannot be used to ignore or override direct, specific provisions on the question of persons with pending criminal cases, as stipulated in article 99(2) and (3).
Neither can the oncoming Leadership and Integrity Bill oust article 99 of the Constitution, since ordinary legislation is inferior to the Constitution in the hierarchy of laws.
Admittedly, article 99 provisions are quite strange and somewhat unsettling, given the progressive nature of Kenya’s new Constitution.
In our euphoria to vote in a new Constitution, we did not interrogate well enough some of its little details, like article 99.
Prof Kithure Kindiki, an advocate in Kenyan courts, is on the List of Counsel at the ICC, and is a professor of international law email@example.com