Why Uhuru and Ruto must heed Githongo’s call

But let’s take this a notch higher. The crimes tried at the ICC are not common offences like pick-pocketing or negligent homicide. We are talking about the most heinous crimes known to humankind – crimes against humanity, war crimes, and genocide.

It doesn’t get any more craven or depraved. Suspects indicted – or convicted – for such crimes are considered the “worst of the worst”. I believe that was Mr Githongo’s point.

He was saying in effect that a person indicted by the ICC for crimes against humanity shouldn’t even think of aspiring to public office. By terming the quest for the State House “bizarre,” Mr Githongo was asking this question – how on earth can this be normalised or made acceptable?

As the former chair of the KNCHR Maina Kiai wrote recently in a Saturday Nation column, persons indicted by the ICC should completely withdraw from public life. That’s what is normal, except in Kenya and Sudan.

The fact that Mr Kenyatta and Mr Ruto are still running – and are very popular in their ethnic cocoons – is a horrific statement on the moral conscience of the nation. It means that many Kenyans have taken leave of their morality.

They say that only a conviction by the ICC would bar the two. But consider this. In any decent society, a simple charge of battery, indecent exposure, or molestation would cause a candidate to drop out of a presidential race.

Then there’s the matter of Chapter Six – on Leadership and Integrity – of the Constitution. This will guillotine most suspects. The proposed bill to implement Chapter Six is unconstitutional because it doesn’t bar suspects.

Chapter Six must be read in the spirit of Article 145 which allows the impeachment of a sitting president if “there are serious reasons for believing that the President has committed a serious crime under national or international law.”

Persons indicted by the ICC must stand down under this standard. I don’t see any other credible option. That’s why Mr Kenyatta and Mr Ruto must heed Mr Githongo’s call.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.