Ethics guru John Githongo is Kenya’s conscience. The world stands up and pays attention when Mr Githongo speaks. That’s because he’s a rare species in Kenyan public life.
Mr Githongo is as close as you will get to the model citizen under the new Constitution. That’s why Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto must take Mr Githongo’s admonition very seriously.
Last week, Mr Githongo asked Mr Kenyatta and Mr Ruto to drop their bid for the State House pronto. Without mincing words, he called their quest for the presidency “bizarre”.
Mr Githongo stated in the simplest and most compelling language why an indictment for crimes against humanity unequivocally bars them from public office.
Mr Kenyatta and Mr Ruto – and their supporters – have insisted that their indictment by the International Criminal Court for crimes against humanity shouldn’t extinguish their presidential ambitions.
At first, such an assertion sounded outlandish to most observers of politics and the law. That’s until Mr Kenyatta and Mr Ruto left no doubt that they were dead serious.
Which begs the question – in what moral universe are the two gentlemen operating? What, I ask, is the moral – let alone legal – justification for what would be an outrageous position in any true democracy?
What moral compass would sanction such hubris? Importantly, what does it say about Kenya’s political morality? Is there any notion of shame in public life in Kenya?
Mr Kenyatta and Mr Ruto – and their surrogates – base their case on one principle. That’s the cardinal rule that “one is innocent until proven guilty”. On the surface, that sounds well and good.
In fact, I can’t imagine any more foundational tenet for a civilisation. But that’s not the question. Rather, the question is this – what rights and freedoms are curtailed when one is indicted for a crime before a competent tribunal?
One’s rights to movement or travel, certain forms of speech, and even access to one’s resources might be curtailed. And this is before one is proven guilty. Bottom line – a suspect to a crime is presumed to surrender certain rights until he or she is cleared.
Let me be clear. A suspect’s rights cannot be permanently impaired until a conviction has been secured. But they can be limited. Here are some examples.
A suspect’s right to decide where and when to travel is subject to the court’s calendar, and when the court will require his or her appearance. Courts routinely impound the passports of suspects.
They can freeze the suspect’s assets, or require the suspect to post a huge bond. This is clearly a limitation on the right of the suspect to freely use or dispose of private property.
It’s through this lens that one must interrogate the rights of an indicted person. A “presumption of innocence” doesn’t lift the “suspicion of guilt”.
In the case of an indictment by the ICC, the “suspicion of guilt” hangs over the heads of suspects like the Sword of Damocles. Why – that’s because indictments must be confirmed by the court before a trial can begin.
An indictment under the ICC isn’t simply the handiwork of the Chief Prosecutor. The judges must be satisfied that the prosecution has established the likelihood that a crime was committed.
In the United States, in contrast, indictments are issued by a grand jury. These are not judges, but common citizens. But within the ICC an indictment by the judges tells you that they consider the evidence adduced by the prosecution to be credible enough to probably lead to a conviction.
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.